Murray J.M. et al v. Valente et al

Filing 106

OPINION AND ORDER: re: 43 MOTION NOTICE OF MOTION TO RECONSIDER HER MOTION FOR SANCTIONS filed by Ethlean Murray, 60 MOTION to Dismiss the Complaint and in Opposition to Plaintiff's Motion for Sanctions filed by The New York Stat e Education Department Office of Counsel, Mary Ellen Elia, 62 MOTION to Dismiss Plaintiff's Amended Verified Complaint filed by Margo L. May, Esq., 34 MOTION for Sanctions filed by Ethlean Murray, 76 MOTION to Dismiss the Ame nded Complaint filed by U.S. Department of Education Office for Civil Rights, 67 MOTION to Dismiss filed by Carol Ann Dobson, Lakeland Central School District Board of Education, George Stone, Karen Gagliardi, Jonathan Valente. For the foregoing reasons, the Motions to Dismiss are granted and the Motion for Sanctions and the recusal request are denied. All of the claims asserted in the Amended Complaint are dismissed without prejudice. Plaintiff may, within 30 days from the dat e of this Opinion, file an amended pleading correcting the deficiencies identified above. The amended pleading may only contain claims that Plaintiff is asserting on her own behalf, i.e., she must allege how her rights were violated. If Plaintiff fai ls to abide by the 30-day deadline, this Action likely will be dismissed with prejudice. The Clerk of Court is respectfully directed to terminate the pending Motions, (Dkt. Nos. 34, 43, 60, 62, 67, 76), and to mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/26/2017) (ama) Modified on 9/26/2017 (ama).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ETHLEAN MURRAY, individually and on behalf of
J.M.,
Plaintiffs,
-v-

No. 16-CV-6795 (KMK)
OPINION & ORDER

LAKELAND CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION; CAROL ANN
DOBSON (BOARD OF EDUCATION PRESIDENT
FOR LAKELAND CENTRAL SCHOOL
DISTRICT); GEORGE STONE
(SUPERINTENDENT OF SCHOOLS FOR
LAKELAND CENTRAL SCHOOL DISTRICT);
KAREN GAGLIARDI (SCHOOL PRINCIPAL
EMPLOYED BY LAKELAND CENTRAL
SCHOOL DISTRICT); JONATHAN VALENTE
(TEACHER EMPLOYED BY LAKELAND
CENTRAL SCHOOL DISTRICT); MARGO L.
MAY, ESQ.; MARY ELLEN ELIA
(COMMISSIONER FOR NEW YORK STATE
EDUCATION DEPARTMENT); THE NEW YORK
STATE EDUCATION DEPARTMENT OFFICE OF
COUNSEL; AND U.S. DEPARTMENT OF
EDUCATION OFFICE FOR CIVIL RIGHTS; in all
Defendant’s Official and Individual Capacity;
Defendants.

Appearances:
Ethlean Murray
Yorktown Heights, NY
Pro Se Plaintiff
James A. Randazzo, Esq.
Portale Randazzo LLP
White Plains, NY
Counsel for Lakeland Central School District Board of Education, Jonathan Valente, Karen
Gagliardi, George Stone, and Carol Ann Dobson

Marian C. Rice, Esq.
Meredith D. Belkin, Esq.
L’Abbate, Balkan, Colavita and Contini, LLP
Garden City, NY
Counsel for Defendant Margo May
Clement J. Colucci, III, Esq.
New York State Department of Law Litigation
New York, NY
Counsel for Mary Ellen Elia and the New York State Education Department Office of Counsel
Sharanya Mohan, Esq.
United States Attorney’s Office Southern District of New York
New York, NY
Counsel for U.S. Department of Education Office for Civil Rights
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Ethlean Murray (“Plaintiff”) brings this Action against numerous
defendants, alleging various claims under federal law arising out of an incident of purported
discrimination involving her son, J.M., and the subsequent investigation of that incident.1 Before
the Court are four Motions To Dismiss and Plaintiff’s Motion for Sanctions. The Court also
construes Plaintiff’s submissions to be requesting that the Court recuse itself. For the following
reasons, the Motions To Dismiss are granted and the Motion for Sanctions and recusal request
are denied.

1

Plaintiff originally sought to prosecute this action pro se on her own behalf and on
behalf of J.M. The Court dismissed the claims brought on behalf of J.M. because Plaintiff
cannot represent J.M. pro se. See Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 133 (2d Cir.
2009) (explaining that a layperson may not represent a minor child).
2

I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Amended Complaint, the documents
appended thereto, and the filings Plaintiff submitted in opposition to the instant Motions, and are
taken as true for the purpose of resolving the Motions.
During the time giving rise to this Action, Plaintiff’s son, J.M., was a third grade student
at the Thomas Jefferson Elementary School (“TJ”). (See Am. Compl. ¶¶ 5, 15 (Dkt. No. 4).) On
September 4, 2015, J.M.’s teacher, Jonathan Valente (“Valente”), allegedly discriminated against
J.M. by requiring him to sit on the classroom floor. (See id. ¶¶ 15–16.) J.M. told Plaintiff about
this incident on September 9, 2015. (See id. ¶ 20.) Plaintiff immediately emailed George Stone
(“Stone”), the Superintendent of Schools for the Lakeland Central School District, about the
incident, and copied Valente and Karen Gagliardi (“Gagliardi”), TJ’s principal, on the email.
(See id.) Stone allegedly ignored Plaintiff’s complaint. (See id. ¶ 21.) Gagliardi responded via
letter. (See Am. Compl. App’x (“App’x”) 16.)
On September 23, 2015, Plaintiff sent a complaint to Carol Ann Dobson (“Dobson”), the
Board of Education President for the Lakeland Central School District, concerning the incident.
(See Am. Compl. ¶ 26; App’x 17–21.) Plaintiff alleges that the Board of Education acted
indifferently to the complaint and did not conduct an investigation. (See Am. Compl. ¶ 26.) On
October 1, 2015, Dobson responded via letter and informed Plaintiff that Plaintiff was required
to inform TJ where J.M. was attending school, as J.M. had missed more than a week of school to
date. (See App’x 23–24.) Dobson noted that if Plaintiff did not disclose where J.M. was
attending school, TJ was obligated to make a report to Child Protective Services (“CPS”)
because J.M. was in the compulsory age of attendance. (See id. at 24.) Plaintiff alleges that

3

Dobson’s letter was a part of a conspiracy to cover up the discrimination that J.M. suffered. (See
Am. Compl. ¶ 28.) Plaintiff alleges further that Dobson’s letter restricted Plaintiff’s
constitutional right to free speech and discriminated against Plaintiff because Plaintiff is a
disabled veteran. (See id. ¶ 29.) Plaintiff contends that the Board of Education should have
launched an investigation into her complaint and called emergency meetings, but failed to do so.
(See id. ¶ 31.) The lack of response from TJ and school district employees allegedly “forced”
Plaintiff to remove J.M. from TJ. (See id. ¶ 37 (emphasis omitted).)
Plaintiff enrolled J.M. in a different school beginning on September 21, 2015. (See id.
¶ 46.) However, because Plaintiff did not inform TJ that J.M. was attending a new school, TJ
filed a report with CPS on October 7, 2015. (See id. ¶ 47.)2 The report allegedly was false and
malicious. (See id.) On the same date the CPS report was filed, Plaintiff emailed the
Commissioner of Education and the Chancellor of the Board of Regents concerning the alleged
discriminatory treatment of J.M. (See id. ¶ 48.) In response to Plaintiff’s email, the New York
State Department of Education (“SED”) informed Plaintiff that she had three options to pursue
her claims against school district employees: (1) file an Appeal to the Commissioner through the
SED Office of Counsel; (2) file a Complaint of Discrimination with the Office for Civil Rights;
or (3) file a lawsuit against the school district. (See App’x 42.)
On November 2, 2015, Plaintiff filed a petition with the Commissioner of SED (“SED
Petition”) seeking the removal of Dobson and the other members of the Board of Education.
(See Am. Compl. ¶¶ 49–50; App’x 44.) Then, on November 16, 2015, Plaintiff filed a complaint
with the United States Department of Education, Office for Civil Rights (“OCR”). (See Am.
Compl. ¶ 55; App’x 57–63.) Because Plaintiff filed a claim with SED, OCR closed Plaintiff’s

2

It was later determined that the CPS report was unfounded. (See Am. Compl. ¶ 52.)
4

case on December 15, 2015, informing Plaintiff that she could file a new complaint following
SED’s final determination. (See App’x 239 n.1.)
On November 19, 2015, Margo May (“May”), counsel for the defendants named in the
SED Petition, filed an allegedly untimely request for an extension of time to file the defendants’
answer. (Am. Compl. ¶ 57.) Plaintiff opposed this request. (See id. ¶ 58.) The defendants sent
their answer to Plaintiff on December 4, 2015. (See id. ¶ 59.) Included with the answer were
four allegedly false affidavits. (See id.) By filing these affidavits, Plaintiff asserts that May
became a participant in the conspiracy to unlawfully discriminate against Plaintiff and J.M. (See
id. ¶ 60.) Plaintiff filed a response to the defendants’ answer in late December 2015. (See id.
¶ 63.) Then, on January 2, 2016, Plaintiff filed a letter objecting to SED’s decision to grant the
defendants’ extension request and accused SED of various kinds of impropriety. (See id. ¶¶ 64–
65; App’x 176–187.)
On February 16, 2016, Plaintiff served a notice of claim on the Board of Education’s
district clerk. (See Am. Compl. ¶ 67.) The Board of Education allegedly retaliated against
Plaintiff by mailing a letter to Plaintiff on February 22, 2016. (See id. ¶ 68.) Plaintiff responded
to this letter on February 29, 2016. (See id. ¶ 69.)
On March 20, 2016, Plaintiff sent letters to United States Attorney Preet Bharara and
John B. King, Jr., the “United States Acting Secretary,” seeking immediate assistance. (Id. ¶ 70.)
Plaintiff forwarded a copy of these letters to OCR and to SED. (See id.) On March 24, 2016,
OCR assigned Plaintiff’s complaint a case number. (See id. ¶ 71.) In April 2016, OCR informed
Plaintiff that it needed additional information to process Plaintiff’s complaint. (See id. ¶ 72.)
Plaintiff alleges that this request for additional information was nothing more than an attempt to
deprive Plaintiff and J.M. of their constitutional rights. (See id.) Plaintiff objected to OCR’s

5

request and demanded that OCR “cease and desist” from depriving Plaintiff and J.M. of their
constitutional rights. (Id. ¶ 73.) On May 5, 2016, Nadja Gill (“Gill”), an OCR employee, sent
Plaintiff a letter dismissing Plaintiff’s complaint. (See id. ¶ 74.) The letter explained that OCR
dismissed Plaintiff’s complaint because Plaintiff filed a complaint based on the same incident
with SED. (App’x 239.) Plaintiff contends that Gill’s letter violated New York State Penal Law.
(See Am. Compl. ¶ 75.)
After Plaintiff commenced this Action, on November 21, 2016, SED dismissed the SED
Petition on procedural and jurisdictional grounds. (See Letter from Plaintiff to Court (Nov. 28,
2016) (“November 2016 Letter”) Ex. 2 (Dkt. No. 42).)
Plaintiff has sued SED, Commissioner of SED Mary Ellen Elia (“Elia”), the Lakeland
Central School District Board of Education, Dobson, Stone, Gagliardi, Valente, May, Gill, and
OCR for violating several federal statutes. Specifically, Plaintiff asserts that the Lakeland
Central School District Board of Education, Dobson, Stone, Gagliardi, Valente, and May
violated Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”)
of 1990, § 504 of the Rehabilitation Act of 1973, 18 U.S.C. §§ 241–42, 245, and 42 U.S.C.
§§ 1981, 1983, 1985. (See Am. Compl. ¶¶ 78–109.) Plaintiff also asserts that OCR violated 18
U.S.C. §§ 242 and 245, 42 U.S.C. §§ 1981, 1983, and 1985. (See id. ¶¶ 96–109.) Finally,
Plaintiff contends that SED violated 42 U.S.C. §§ 1981 and 1983. (See id. ¶¶ 100–04.)
B. Procedural Background
Plaintiff initiated this Action on her own behalf and on behalf of J.M. on August 30, 2016
by filing a Complaint. (See Dkt. No. 1.) Plaintiff filed the Amended Complaint on September
15, 2016. (See Dkt. No. 4.) On October 5, 2016, the Court issued an Order To Show Cause
informing Plaintiff that she was required to “obtain an attorney in order to pursue those claims

6

brought on behalf of J.M. because a person who has not been admitted to the practice of law may
not represent anyone other than herself.” (See Order (Dkt. No. 5).) Plaintiff was given 30 days
to obtain counsel to represent J.M. (See id.) Following an extension request, on November 7,
2016, the deadline was extended until December 7, 2016. (See Dkt. No. 19.)
On November 16, 2016, Plaintiff filed a number of documents with the Court, seeking,
among other things, sanctions against May. (See Dkt. Nos. 31–35.) On November 21, 2016, the
Court denied Plaintiff’s request and granted her “one last 30-day extension” to find an attorney
to represent J.M. (Dkt. No. 41.) On January 3, 2017, Plaintiff filed a motion for reconsideration
of the Court’s decision to deny her motion for sanctions. (See Dkt. Nos. 43–45.)
On January 11, 2017, the Court dismissed the claims brought on behalf of J.M. without
prejudice. (See Order (Dkt. No. 50).) Pursuant to a memo endorsement setting forth a briefing
schedule, Defendants May, Elia, SED, Dobson, Gagliardi, Lakeland Central School District
Board of Education, Stone, and Valente filed Motions To Dismiss on January 31, 2017. (See
Dkt. Nos. 60–70.) OCR and Gill filed a Motion To Dismiss on February 10, 2017. (See Dkt.
Nos. 76–81.) Plaintiff has filed voluminous letters objecting to the Motions and other filings,
(see Dkt. Nos. 82–85, 89, 92, 96, 99, 102–03), but has not filed a formal opposition to any of the
Motions. Accordingly, the Court deems the Motions to be fully submitted.
II. Discussion
Defendants have presented several grounds for dismissal. OCR and Gill (the “Federal
Defendants”) argue that the Amended Complaint must be dismissed because: (1) Plaintiff has
failed to properly serve them; (2) the claims against OCR should be dismissed for lack of subject
matter jurisdiction; and (3) Plaintiff has failed to state a claim. The Lakeland Central School
District Board of Education, Dobson, Stone, Gagliardi, and Valente (the “Lakeland Defendants”)

7

argue that the Amended Complaint must be dismissed because Plaintiff has failed to state a claim
and the Board of Education and its members are entitled to immunity for filing a complaint with
CPS. SED and Elia (the “State Defendants”) argue that the Amended Complaint must be
dismissed because: (1) the claims are barred by the Eleventh Amendment; (2) Plaintiff has failed
to state a claim; and (3) Elia is entitled to judicial and qualified immunity. Finally, May argues
that the Amended Complaint must be dismissed because Plaintiff has not and cannot state a
claim against May because she was not acting under color of state law during the events giving
rise to this Action.
Before addressing each of these arguments, the Court pauses to reiterate that Plaintiff
cannot pursue any claims on behalf of J.M. because she is not a lawyer. See Berrios v. N.Y.C.
Hous. Auth., 564 F.3d 130, 133 (2d Cir. 2009) (explaining that a layperson may not represent a
minor child); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 201 (2d Cir.
2002) (noting that “a non-attorney parent is precluded from representing his or her child in
federal court”); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.
1990) (explaining that “a non-attorney parent must be represented by counsel in bringing an
action on behalf of his or her child”). Additionally, parents do not have standing to assert claims
on behalf of their children. See Patterson ex rel. T.P. v. Elmsford Union Free Sch. Dist., No. 11CV-5133, 2012 WL 860367, at *3 (S.D.N.Y. Feb. 27, 2012) (noting “[§] 1983 does not
recognize a claim on behalf of one person arising from a violation of another person’s rights”
and holding that the plaintiff “c[ould not] recover on any derivative claim based on a Section
1983 civil rights . . . violation simply because she [was] [the child’s] mother”); JG & PG ex rel.
JGIII v. Card, No. 08-CV-5668, 2009 WL 2986640, at *6 (S.D.N.Y. Sept. 17, 2009) (“PlaintiffParents do not have standing to sue on their own behalf for violation of Plaintiff-Children’s

8

constitutional rights.”). Therefore, to succeed in this Action, Plaintiff must show that her rights
were violated.
A. Standard of Review
1. Rules 12(b)(1) & 12(b)(6)
“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction and under 12(b)(6) for failure to state a claim are ‘substantively identical.’”
Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn.
June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)); see also
Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same),
aff’d, 591 F. App’x 28 (2d Cir. 2015). “In deciding both types of motions, the Court must accept
all factual allegations in the complaint as true, and draw inferences from those allegations in the
light most favorable to the plaintiff.” Gonzalez, 2014 WL 2475893, at *2 (internal quotation
marks omitted); see also Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1
(D. Vt. June 4, 2012) (same). “On a Rule 12(b)(1) motion, however, the party who invokes the
Court’s jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction
exists, whereas the movant bears the burden of proof on a motion to dismiss under Rule
12(b)(6).” Gonzalez, 2014 WL 2475893, at *2; see also Sobel v. Prudenti, 25 F. Supp. 3d 340,
352 (E.D.N.Y. 2014) (“In contrast to the standard for a motion to dismiss for failure to state a
claim under Rule 12(b)(6), a plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” (internal quotation marks omitted)).
This allocation of the burden of proof is “[t]he only substantive difference” between the
standards of review under these two rules. Smith v. St. Luke’s Roosevelt Hosp., No. 08-CV4710, 2009 WL 2447754, at *9 n.10 (S.D.N.Y. Aug. 11, 2009), adopted by 2009 WL 2878093

9

(S.D.N.Y. Sept. 2, 2009).
a. Rule 12(b)(1)
“A federal court has subject matter jurisdiction over a cause of action only when it has
authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233,
241 (E.D.N.Y. 2014) (internal quotation marks omitted). “Determining the existence of subject
matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (internal quotation marks omitted), aff’d, 561 U.S. 247 (2010). A district court
resolving a motion to dismiss under Rule 12(b)(1) “must take all uncontroverted facts in the
complaint . . . as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction[,] [b]ut where jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the pleadings, such as
affidavits,” in which case “the party asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration, internal quotation marks, and
citation omitted); see also Ray Legal Consulting Grp. v. Gray, 37 F. Supp. 3d 689, 696
(S.D.N.Y. 2014) (“[W]here subject matter jurisdiction is contested a district court is permitted to
consider evidence outside the pleadings, such as affidavits and exhibits.”).
b. Rule 12(b)(6)
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his [or her] entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a

10

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations,
alteration, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims across the
line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556
U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” (citation omitted) (alteration in original) (quoting Fed. R. Civ. P.
8(a)(2)); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency
of a complaint we accept as true all factual allegations . . . .” (internal quotation marks omitted));

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Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013) (“In reviewing a
dismissal pursuant to Rule 12(b)(6), we . . . accept all factual allegations in the complaint as
true . . . .” (alteration and internal quotation marks omitted)). Further, “[f]or the purpose of
resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the
plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014)
(citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)).
Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his or her
complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks
omitted); see also Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at
*12 (S.D.N.Y. Dec. 2, 2013) (same), aff’d sub nom. Farzan v. Genesis 10, 619 F. App’x 15 (2d
Cir. 2015). In deciding a motion to dismiss a pro se complaint, it is appropriate to consider
certain “materials outside the complaint to the extent that they are consistent with the allegations
in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3
(S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including “documents that a pro se
litigant attaches to his [or her] opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL
5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted); see also Walker v. Schult, 717
F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a court “may consider factual allegations made by a
pro se party in his papers opposing the motion” (italics omitted)). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga Cty., 517 F.3d

12

601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding
procedural rules and to comply with them.” (italics and internal quotation marks omitted)).
2. Rule 12(b)(5)
“A defendant may move to dismiss under Rule 12(b)(5) for insufficient service of
process.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010). “In deciding
a Rule 12(b)(5) motion, a [c]ourt must look to Rule 4, which governs the content, issuance, and
service of a summons,” id., and may consider “matters outside the complaint to determine
whether it has jurisdiction,” Cassano v. Altshuler, 186 F. Supp. 3d 318, 320 (S.D.N.Y. 2016).
“Once a defendant challenges the sufficiency of service of process, the burden of proof is on the
plaintiff to show the adequacy of service.” George v. Prof’l Disposables Int’l, Inc., 221 F. Supp.
3d 428, 432 (S.D.N.Y. 2016) (internal quotation marks omitted).
B. The Claims Asserted Against the Federal Defendants
1. Service of Process
Federal Defendants argue that Plaintiff has failed to properly serve them. (See Federal
Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (“Federal Defs.’ Mem.”) 7 (Dkt. No. 77).)
Under Federal Rule of Civil Procedure 4(i), to commence an action against an agency of the
United States or an employee of the United States in their official capacity, a plaintiff must,
among other things, “deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought.” See Fed. R. Civ. P. 4(i)(1)(A)(i), 4(i)(2).
To proceed against employees of the United States in their individual capacity, a plaintiff must
complete this same step. See id. 4(i)(3) (noting that a party “must serve the United States”).
Because this Action was commenced in the Southern District of New York, Plaintiff was
required to deliver a copy of the summons and complaint to the United States Attorney’s Office

13

for the Southern District of New York to proceed against both OCR and Gill. Plaintiff has failed
to do so. (See Second Decl. of Sharanya Mohan ¶ 2 (Dkt. No. 79) (“According to the records of
this Office, to date, the Office has not been served with a copy of the summons issued for
[OCR], or for any other defendant in the case, by Plaintiff. The Office has also not been served
by Plaintiff with the complaint or the amended complaint in this matter.”).) Accordingly, the
claims asserted against the Federal Defendants are dismissed for failure to effectuate service of
process.3
2. Subject Matter Jurisdiction
Federal Defendants also argue that Plaintiff’s claims against OCR are barred by the
doctrine of sovereign immunity. (See Federal Defs.’ Mem. 8–9.) “[U]nder the principle of
sovereign immunity . . . the United States may not be sued without its consent and . . . the
existence of consent is a prerequisite for jurisdiction.” Adeleke v. United States, 355 F.3d 144,
150 (2d Cir. 2004) (internal quotation marks omitted). “[A]n action against a federal agency or
officials in their official capacities is essentially a suit against the United States.” Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). “Accordingly, in the context of
a private party suit against a Federal agency or officer—absent a waiver of sovereign
immunity—subject matter jurisdiction does not exist.” SEC v. Comm. On Ways and Means of
the U.S. House of Representatives, 161 F. Supp. 3d 199, 216 (S.D.N.Y. 2015). Federal
Defendants assert that none of the statutes that could be applicable to Plaintiff’s claims—Title
VI, the Federal Tort Claims Act (“FTCA”), and the Administrative Procedure Act (“APA”)—
waives OCR’s sovereign immunity. (See Federal Defs.’ Mem. 9–14.)

3

Plaintiff was informed of this deficiency in November 2016, but has not corrected it to
date. (See November 2016 Letter Ex. 3.)
14

a. Title VI
Title VI “does not create a private right to sue the Department of Education or the
Secretary to terminate funding to an allegedly discriminatory entity or program.” Grimes ex rel.
Grimes v. Cavazos, 786 F. Supp. 1184, 1189 (S.D.N.Y. 1992). Nor does Title VI “contain an
implied right of action” against the Department of Education or OCR, which is a part of the
Department of Education. Id. at 1191; see also Beal v. Cortland, No. 16-CV-666, 2016 WL
6242114, at *6 (N.D.N.Y. June 21, 2016) (“[N]either Title VI, nor its implementing
regulations[,] create a private right of action against the [Department of Education] based on the
enforcement or failure to enforce the statute.”), adopted by 2016 WL 6238573 (N.D.N.Y. Oct.
25, 2016). Therefore, Title VI does not serve to waive OCR’s sovereign immunity.
b. The FTCA
“Sovereign immunity shields the United States, it agencies, and federal employees sued
in their official capacities from constitutional tort claims.” Ibrahim v. United States, 868 F.
Supp. 2d 27, 30–31 (E.D.N.Y. 2012) (emphasis omitted). However, the FTCA “is a limited
waiver of sovereign immunity” for non-constitutional tort claims, “making the Federal
Government liable to the same extent as a private party for certain torts of federal employees
acting within the scope of their employment.” United States v. Orleans, 425 U.S. 807, 813
(1976). “[O]nly the United States may be held liable for torts committed by a federal agency,
and not the agency itself.” C.P. Chem. Co., Inc., v. United States, 810 F.2d 34, 37 n.1 (2d Cir.
1987). Because Plaintiff has not sued the United States itself, the FTCA cannot serve as waiver
of OCR’s sovereign immunity.
Even if Plaintiff did sue the United States, the FTCA would be inapplicable here because
Plaintiff has not satisfied all of the conditions necessary to prosecuting an FTCA claim. One

15

condition attached to FTCA claims “is that a plaintiff must first file an administrative claim with
the appropriate agency before suing for relief in federal court.” Adeleke, 355 F.3d at 153.
Plaintiff does not allege that she satisfied this precondition to filing suit in federal court.
Therefore, to the extent Plaintiff is asserting claims under the FTCA, they are dismissed. See
McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing
suit in federal court until they have exhausted their administrative remedies.”); Gay v. Terrell,
No. 12-CV-02925, 2013 WL 5437045, at *26 (E.D.N.Y. Sept. 27, 2013) (“The burden is on the
[p]laintiff to both plead and prove compliance with the FTCA’s statutory requirements.”
(alteration and internal quotation marks omitted)).
c. The APA
Plaintiff may be attempting to assert a claim under the APA relating to OCR’s decision to
dismiss Plaintiff’s two administrative complaints. Under the APA, “[a] person suffering legal
wrong because of agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. However,
only agency actions “for which there is no other adequate remedy in a court are subject to
judicial review.” Id. § 704. Federal Defendants correctly argue that Plaintiff cannot maintain an
action under the APA because Plaintiff has other adequate remedies available to her, i.e., she can
file a lawsuit against the discriminating entity. (See Federal Defs.’ Mem. 12–13.) Therefore, the
APA does not serve as a waiver of OCR’s sovereign immunity. See Pudlin v. Office for (Not of)
Civil Rights of the U.S. Dep’t of Educ., 186 F. Supp. 3d 288, 293 (S.D.N.Y. 2016) (dismissing
APA claim because the plaintiff “ha[d] an adequate, alternate remedy: a disability discrimination
suit directly against” the allegedly discriminating entity); see also Sherman v. Black, 315 F.

16

App’x 347, 349 (2d Cir. 2009) (affirming dismissal of APA claim because the plaintiff “ha[d]
another adequate remedy”).4
d. Plaintiff’s Other Claims
Plaintiff asserts several additional claims against OCR for violations of: 18 U.S.C.
§§ 241–42, and 245, and 42 U.S.C. §§ 1981, 1983, and 1985. None of these statutes provides
grounds for relief against OCR. First, Plaintiff cannot maintain a civil action pursuant to 18
U.S.C. §§ 241–42, or 245 because they are criminal statutes and do not provide private rights of
action. See Robinson, 21 F.3d at 511 (holding that § 242 does not provide a private cause of
action); Corrado v. State of N.Y. Univ. Stony Brook Police, Nos. 15-CV-7443, 15-CV-7444,
2016 WL 4179946, at *3 (E.D.N.Y. Aug. 5, 2016) (holding that §§ 242 and 245 do not provide
private rights of action); Vasile v. Dean Witter Reynolds Inc., 20 F. Supp. 2d 465, 478 (E.D.N.Y.
1998) (holding that § 241 “does not provide for a private right of action”). Second, 42 U.S.C.
§§ 1981, 1983, and 1985 are inapplicable to the federal government. See Harrison v. Potter, 323
F. Supp. 2d 593, 604–05 (S.D.N.Y. 2004) (holding that §§ 1981, 1983, and 1985 “do not provide
a remedy against the federal government”). Accordingly, all of the claims asserted against OCR
in the Amended Complaint are barred.5

Plaintiff’s APA claim is also subject to dismissal to the extent that she seeks damages as
a remedy. See Cty. of Westchester v. U.S. Dep’t of Hous. & Urban Dev., 778 F.3d 412, 417 (2d
Cir. 2015) (“[T]he APA’s limited waiver of the federal government’s sovereign immunity
permits only suits seeking relief other than money damages.” (internal quotation marks
omitted)).
4

5

To the extent that Plaintiff was attempting to assert claims against the Federal
Defendants for violation of the ADA and § 504 of the Rehabilitation Act, those claims are
dismissed as well. See Cellular Phone Taskforce v. FCC, 217 F.3d 72, 73 (2d Cir. 2000) (per
curiam) (“Title II of the ADA is not applicable to the federal government.”); Marlow v. U.S.
Dep’t of Educ., 820 F.2d 581, 583 (2d Cir. 1987) (“We do not believe that a private right of
action by an individual complainant against a federal funding agency for review of an agency’s
finding of no discrimination can be implied under [§] 504.”).
17

3. Failure to State a Claim
Construing the Amended Complaint broadly, Plaintiff may be attempting to assert a
claim against Gill.6 Federal Defendants argue that any such claim must be dismissed for failure
to state a claim. (See Federal Defs.’ Mem. 16–18.) Plaintiff cannot assert a claim against Gill
under the FTCA, because only the United States is a proper defendant in such claims, see C.P.
Chem., 810 F.2d at 37 n.1, but may assert a claim pursuant to Bivens v. Six Unknown Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which the Supreme Court recognized a
cause of action against federal employees in their individual capacities for alleged violation of
the Fourth Amendment.
Any Bivens claim Plaintiff may be attempting to assert, however, must be dismissed
because Plaintiff has not alleged that Gill violated her constitutional rights. Plaintiff alleges that
Gill’s May 5, 2016 letter dismissing Plaintiff’s OCR complaint is “retaliatory,” (Am. Compl.
¶ 74), but this conclusory allegation is insufficient to state a claim. See Wang v. Palmisano, 51
F. Supp. 3d 521, 539–40 (S.D.N.Y. 2014) (declining to credit the plaintiff’s “wholly conclusory”
allegation that the defendants acted with “retaliatory ‘motives’”); Laurent v. G & G Bus Serv.,
Inc., No. 10-CV-4055, 2011 WL 2693651, at *1 (S.D.N.Y. July 11, 2011) (“While the plaintiff
repeats his conclusory allegations that he was discriminated against in violation of the Age
Discrimination in Employment Act and the Americans with Disabilities Act and that he was
retaliated against in violation of those statutes and Title VII, he has failed to go beyond
conclusory allegations that do not state plausible claims for violation of those statutes.”).
Moreover, Plaintiff’s conclusory allegation is belied by the text of Gill’s letter. Gill merely

6

Although Gill is not named as a defendant in the caption of the Amended Complaint,
Plaintiff refers to Gill as a defendant in the body of that document. (See Am. Compl. ¶ 13.)
18

informed Plaintiff that OCR could not process Plaintiff’s complaint at that time because,
“[p]ursuant to OCR’s case processing procedures,” OCR dismisses complaints “when the
complainant has filed the same allegations against the same recipient with another federal, state
or local civil rights enforcement agency.” (App’x 239.) The same allegations were currently
pending before SED, and therefore Gill followed OCR procedures in dismissing Plaintiff’s OCR
complaint. Accordingly, Plaintiff has failed to state a claim against Gill.
Because Plaintiff’s claims against OCR are barred by sovereign immunity and Plaintiff
has not stated a claim against Gill, all of the claims asserted against the Federal Defendants are
dismissed.
C. The Claims Against the Lakeland Defendants
Lakeland Defendants argue that Plaintiff has not stated a claim. (See Lakeland Defs.’
Mem. of Law in Supp. of their Mot. To Dismiss 5 (Dkt. No. 69).) They proceed claim by claim
through Plaintiff’s allegations. The Court will do the same.7
1. Title VI
Plaintiff cannot maintain a Title VI claim against the Lakeland Defendants because she is
not the intended beneficiary of this federally funded school program. See HB v. Monroe
Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 WL 4477552, at *18 (S.D.N.Y. Sept. 27,
2012) (holding that the plaintiff-parents did not have standing to assert a Title VI claim because
“there [were] not beneficiaries of federally-funded school programs”); Rodriguez v. Boursiquot,
No. 09-CV-802, 2010 WL 985187, at *4 (S.D.N.Y. Mar. 17, 2010) (holding that the plaintiff did
not have standing to assert a Title VI claim because she was not the beneficiary of a federally

7

For the same reasons as stated above, Plaintiff cannot assert causes of action against the
Lakeland Defendants based upon 18 U.S.C. §§ 241–42 or § 245.
19

funded school program nor was she bringing suit on behalf of individuals or organizations who
were). Accordingly, Plaintiff’s Title VI claim is dismissed against the Lakeland Defendants.8
2. 42 U.S.C. § 1981
To state a § 1981 claim, “a plaintiff must allege facts in support of the following
elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the
basis of race by the defendant; and (3) the discrimination concerned one or more of the activities
enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence,
etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
Conclusory allegations of racial discrimination are insufficient to survive a motion to dismiss.
See Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 68–69 (2d Cir. 2015), cert denied, 136 S.
Ct. 1202 (2016) (requiring plaintiffs to “provide meaningful specifics” of the alleged
discrimination to state a claim under § 1981); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir.
1988) (holding that the “naked allegation” that the defendants “selectively enforced the College
rules against [the] plaintiffs because they [were] black or Latin” failed to state a claim
(alterations and internal quotation marks omitted)). Here, Plaintiff has offered nothing but
conclusory allegations that the Lakeland Defendants engaged in discriminatory and retaliatory
acts. (See, e.g., Am. Compl. ¶¶ 15, 21, 24, 26, 28, 34-35.) This is insufficient to state a claim.
Accordingly, Plaintiff’s § 1981 claim is dismissed against the Lakeland Defendants. See
Stefanoni v. Darien Little League, Inc., 101 F. Supp. 3d 160, 177 (D. Conn. 2015) (“[M]erely
conclusory allegations of racial discrimination do not suffice to state a claim under [§] 1981.”).

Additionally, “Title VI claims cannot be asserted against an individual defendant
because the individual is not the recipient of federal funding.” Goonewardena v. New York, 475
F. Supp. 2d 310, 328 (S.D.N.Y. 2007).
8

20

3. Title II of the ADA and § 504 of the Rehabilitation Act
“To prove a violation of Title II [of the ADA], a party must . . . establish: (1) that he is a
‘qualified individual’ with a disability; (2) that he was excluded from participation in a public
entity’s services, programs or activities or was otherwise discriminated against by a public entity;
and (3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont,
340 F.3d 27, 34–35 (2d Cir. 2003) (quoting 42 U.S.C. § 12132). This same standard applies to
Rehabilitation Act claims as well. Id. at 35. Plaintiff alleges that she is a “[d]isabled [v]eteran,”
but she has not pled how her alleged disability motivated the Lakeland Defendants’ supposedly
discriminatory acts. (Am. Compl. ¶ 29 (emphasis omitted).) Plaintiff’s allegations again amount
to nothing more than conclusory statements of discrimination, which are insufficient to state a
claim. See Laurent, 2011 WL 2693651, at *1 (holding that conclusory allegations were
insufficient to state an ADA claim). Indeed, Plaintiff has not provided any information regarding
her disability. See Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 147–48 (2d Cir.
2002) (requiring plaintiff to allege a specific physical or mental impairment). Accordingly,
Plaintiff’s ADA and § 504 claims are dismissed against the Lakeland Defendants.9
4. Equal Protection
“The Equal Protection Clause requires that the government treat all similarly situated
people alike.” Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). “To
state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a
government actor intentionally discriminated against [her] on the basis of [her] race.” Brown v.
City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). Such claims must be “alleged in a non-

Additionally, “neither Title II of the ADA nor § 504 of the Rehabilitation Act provides
for individual capacity suits against state officials.” Garcia v. S.U.N.Y. Health Scis. Ctr. of
Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).
9

21

conclusory fashion.” Traylor v. Hammond, 94 F. Supp. 3d 203, 215 (D. Conn. 2015) (internal
quotation marks omitted). For the same reasons discussed above, Plaintiff has failed to meet this
standard. She claims to have been discriminated against based on her race, but has provided no
factual support for this assertion. Accordingly, Plaintiff’s equal protection claim is dismissed
against the Lakeland Defendants.
5. Conspiracy Claims
The Court construes Plaintiff to be asserting conspiracy claims under both 42 U.S.C.
§ 1983 and § 1985. “[T]o survive a motion to dismiss a claim for conspiracy to violate § 1983 a
plaintiff must allege: (1) an agreement between two or more state actors or between a state actor
and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act
done in furtherance of that goal causing damages.” Bullard v. City of New York, 240 F. Supp. 2d
292, 301 (S.D.N.Y. 2003) (internal quotation marks omitted). “A plaintiff claiming violation of
§ 1985(3) must prove (1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any right of a citizen
of the United States.” Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., No. 98-CV-2416, 2002
WL 13222, at *3 (E.D.N.Y. Jan. 3, 2002). The alleged “conspiracy must also be motivated by
some racial or perhaps otherwise class-based, invidious discriminatory animus behind the
conspirators’ action.” Mian, 7 F.3d at 1088 (internal quotation marks omitted); see also Dolan v.
Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (same).
Plaintiff has failed to state a claim under either of these statutes because her claims are
conclusory. Plaintiff has alleged nothing about the way in which the Lakeland Defendants

22

conspired together or with other defendants to violate Plaintiff’s rights. Accordingly, Plaintiff’s
conspiracy claims are dismissed against the Lakeland Defendants. See Gyadu v. Hartford Ins.
Co., 197 F.3d 590, 591 (2d Cir. 1999) (per curiam) (“[A] complaint containing only conclusory,
vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot
withstand a motion to dismiss.” (internal quotation marks omitted)).10
6. First Amendment
Although Plaintiff does not plead a violation of her First Amendment rights as a separate
cause of action, Plaintiff does allege that her First Amendment rights were violated. (See, e.g.,
Am. Compl. ¶ 16.) “Generally, a private citizen bringing a First Amendment retaliation claim
must allege that (1) [she] has an interest protected by the First Amendment; (2) defendants’
actions were motivated or substantially caused by [her] exercise of that right; and (3) defendants’
action effectively chilled the exercise of [her] First Amendment right.” Jones v. Bay Shore
Union Free Sch. Dist., 947 F. Supp. 2d 270, 275 (E.D.N.Y. 2013) (internal quotation marks
omitted). “Where a party can show no change in [her] behavior, [she] has quite plainly shown
no chilling of [her] First Amendment right to free speech.” Id. (internal quotation marks
omitted). It is unclear in exactly what way Plaintiff’s First Amendment rights were violated.

Moreover, plaintiff’s conspiracy claims are barred by the intracorporate conspiracy
doctrine, as the moving Defendants all worked for the Lakeland School District. See Dilworth v.
Goldberg, 914 F. Supp. 2d 433, 465 (S.D.N.Y. 2012) (“[A] plaintiff’s allegations fail to state a
§ 1985 conspiracy claim ‘if the conspiratorial conduct challenged is essentially a single act by a
single corporation acting exclusively through its own directors, officers, and employees, each
acting within the scope of his employment.’” (quoting Hermann v. Moore, 576 F.2d 453, 459 (2d
Cir. 1978), cert denied, 439 U.S. 1003 (1978))); see also Hartline v. Gallo, 546 F.3d 95, 99 n.3
(2d Cir. 2008) (affirming the dismissal of a conspiracy claim where defendants were all
employees of the municipal police department); Rodriguez v. City of New York, 644 F. Supp. 2d
168, 200 (E.D.N.Y. 2008) (“The intracorporate conspiracy doctrine posits that the officers,
agents, and employees of a single corporate or municipal entity, each acting within the scope of
his or her employment, are legally incapable of conspiring with each other.”).
10

23

She alleges only that the Lakeland Defendants violated her right to free speech because they
ignored her complaints, but ignoring one’s speech is not tantamount to suppressing it. (See Am.
Compl. ¶ 26.) In any event, Plaintiff was undeterred by the Lakeland Defendants’ actions,
because Plaintiff has filed complaints with SED, OCR, and this Court involving the alleged
discrimination suffered by J.M. Accordingly, Plaintiff has “show[n] no change in [her]
behavior,” Jones, 947 F. Supp. 2d at 275, and thus her First Amendment claims are dismissed
against the Lakeland Defendants.
7. The CPS Complaint
To the extent that Plaintiff is asserting claims against the Lakeland Defendants for their
decision to file a complaint with CPS, those claims also must be dismissed. Teachers and school
administrators are statutorily mandated to report suspected child abuse or neglect to CPS. See
N.Y. Soc. Serv. Law § 413(a) (making teachers and school administrators legally obligated to
report suspected child abuse and neglect). “As ‘mandatory reporters,’ school officials receive
immunity from liability whenever they report suspected abuse in good faith, but they are exposed
to liability if they willfully fail to do so.” Oglesby v. Eikszta, 499 F. App’x 57, 60 (2d Cir.
2012); see also N.Y. Soc. Serv. Law § 419 (“Any person, official, or institution participating in
good faith in . . . the making of a report . . . in compliance with [§§ 20, 422, 422-a] of this
chapter shall have immunity from any liability, civil or criminal, that might otherwise result by
reason of such actions.”). Educational neglect may serve as a basis to trigger a school
employee’s duty to report suspected abuse. See Watkins-El v. Dep’t of Educ., No. 16-CV-2256,
2016 WL 5867048, at *3 (E.D.N.Y. Oct. 7, 2016) (holding that the extended absence of the
plaintiff’s three minor children from school “sufficiently indicated educational neglect to trigger
[the principal’s] duty to report”). Here, J.M. was removed from TJ and began attending a new

24

school on September 21, 2015, (see Am. Compl. ¶ 46), but Plaintiff failed to inform the
Lakeland Defendants of this change, even though she was notified that if she did not tell TJ
where J.M. was attending school, a report to CPS would be made. (See App’x 24 (“We are sorry
that you have decided to withdraw you son from our School District and we wish you and [J.M.]
well in his future education. It is imperative that the School District be advised where your son
is attending school immediately since he has missed more than a week of school to date. . . . If
the School District is not advised of the arrangements for your son’s education by the end of this
week, we will have no choice but to make a report to Child Protective Services.”).)11 As Plaintiff
did not provide the requested information, the Lakeland Defendants filed a report with CPS.
Under the circumstances alleged in the Amended Complaint, they had a good faith basis to do so.
Accordingly, the Lakeland Defendants cannot be sued for making a referral to CPS.
D. The Claims Against the State Defendants
State Defendants argue that Plaintiff’s claims against SED and Elia in their official
capacities are barred by the Eleventh Amendment. (See State Defs.’ Mem. of Law in Supp. of
their Mot. To Dismiss 8–9 (Dkt. No. 61).) For the claims not barred by the Eleventh
Amendment, State Defendants contend that Plaintiff has failed to state a claim and that Elia is
entitled to immunity for her role in the events giving rise to this Action. (See id. at 9–11.)
1. Eleventh Amendment Immunity
“[A]s a general matter, states enjoy sovereign immunity from suit in federal court, even if
the claim arises under federal law.” Harrison v. New York, 95 F. Supp. 3d 293, 314 (E.D.N.Y.

11

The Court may rely on this document because it was attached to the complaint. See
Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (“In certain circumstances, the court may
permissibly consider documents other than the complaint in ruling on a motion under Rule
12(b)(6). Documents that are attached to the complaint or incorporated in it by reference are
deemed part of the pleading and may be considered.”).
25

2015) (internal quotation marks omitted); see also U.S. Const. amend. XI.12 “The immunity
recognized by the Eleventh Amendment extends beyond the states themselves to state agents and
state instrumentalities that are, effectively, arms of a state.” Woods v. Rondout Valley Cent. Sch.
Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (internal quotation marks omitted). Thus,
under the doctrine of sovereign immunity, an individual may not sue a state, its agencies, or its
officials in federal court, absent that state’s consent or an express statutory waiver of immunity.
See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670
(1999); see also McGinty v. New York, 251 F.3d 84, 91 (2d Cir. 2001) (“[T]here are two
recognized exceptions to the [Eleventh Amendment] bar: when Congress authorizes such a suit
through enforcement of § 5 of the Fourteenth Amendment, and where a state consents to being
sued.”).
It is well-settled that New York State has not consented to being sued in federal court.
See Bryant v. N.Y. State Dep’t of Corr. Servs. Albany, 146 F. Supp. 2d 422, 425 (S.D.N.Y. 2001)
(noting it is “beyond dispute” that New York and its agencies have not consented to being sued
in federal court (internal quotation marks omitted)). Nor do any of the statutes upon which
Plaintiff relies in instituting this Action against the State Defendants abrogate New York’s
sovereign immunity. See, e.g., Jones v. Nat’l Commc’n & Surveillance Networks, 409 F. Supp.
2d 456, 467 (S.D.N.Y. 2006) (“Sections 1981 to 1986 of Title 42 . . . do not constitute a
congressional waiver of state immunity.”), aff’d, 266 F. App’x 31 (2d Cir. 2008). Accordingly,
the claims asserted against SED and the claims asserted against Elia in her official capacity are
barred by the Eleventh Amendment. See Hayes v. Williamsville Cent. Sch. Dist., 506 F. Supp. 2d

“The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
12

26

165, 169 (W.D.N.Y. 2007) (“A state agency or department such as the Education Department is
an official arm of the state that enjoys the same Eleventh Amendment immunity from suit in
federal court as is enjoyed by the state itself.” (alteration and internal quotation marks omitted)).
2. Failure to State a Claim
The Amended Complaint asserts only one cause of action against the State Defendants.
(See Am. Compl. ¶ 100–04.)13 Specifically, Plaintiff contends that SED engaged in “retaliatory
dilatory tactics” in order to “deliberately deprive . . . Plaintiff[] of [her] federally protected
constitutional rights.” (Id. ¶¶ 103–04.) This claim fails for three reasons: (1) it is conclusory; (2)
“there is no constitutional right to an investigation by government officials,” Troy v. City of New
York, No. 13-CV-5082, 2014 WL 4804479, at *6 (S.D.N.Y. Sept. 25, 2014) (alteration and
internal quotation marks omitted), aff’d, 614 F. App’x 32 (2d Cir. 2015); and (3) there are no
factual allegations upon which the Court can conclude that Elia discriminated against Plaintiff
based on Plaintiff’s race. Accordingly, the claims asserted against Elia are dismissed for failure
to state a claim.14
E. The Claims Against May
May argues that Plaintiff has failed to state a claim. (See Def. May Mem. of Law in
Supp. of Mot. To Dismiss 7 (Dkt. No. 64).) To succeed on the claims Plaintiff has asserted
against May, Plaintiff must show that May was acting under color of state law. See Luo v.
Baldwin Union Free Sch. Dist., No. 12-CV-3073, 2013 WL 1182232, at *3 (E.D.N.Y. Mar. 21,

13

Plaintiff may also be attempting to assert a First Amendment claim against Elia, but
that claim fails for the same reason stated above—Plaintiff’s speech has not been chilled. See
Jones, 947 F. Supp. 2d at 275.
14

Because Plaintiff has not otherwise stated a claim, the Court declines to consider the
State Defendants’ non-sovereign immunity arguments.
27

2013) (“To state a claim under [§ 1983], a plaintiff must allege: (1) that the defendant acted
under color of state law; and (2) that as a result of the defendant’s actions, the plaintiff suffered a
deprivation of his or her rights or privileges as secured by the Constitution or law of the United
States.”). Plaintiff cannot satisfy this element because May, in her role as counsel to the
defendants named in the SED petition, was not acting under color of state law when she filed
documents with SED. See id. at *4 (holding that a lawyer could not be sued for serving as an
advocate for a school district because she was not acting under color of state law). Moreover,
even if May was acting under color of state law, Plaintiff has not otherwise stated a claim for the
same reasons stated above. The allegations contained in the Amended Complaint are wholly
conclusory and do not establish that May violated any of Plaintiff’s rights. See Gomez v. City of
Norwalk, No. 15-CV-1434, 2017 WL 3033322, at *2 (D. Conn. July 17, 2017) (“When a
complaint is based solely on wholly conclusory allegations and provides no factual support for
such claims, it is appropriate to grant [the] defendants’ motion to dismiss.” (alteration and
internal quotation marks omitted)).
F. Plaintiff’s Motion for Sanctions
Plaintiff seeks sanctions against May because she allegedly filed false affidavits with
SED and against OCR’s legal counsel because OCR did not report May’s alleged misconduct.
(See Pl.’s Mem. of Law in Supp. of Mot. for Sanctions 2 (Dkt. No. 31).) The decision of
“whether or not to impose sanctions is a matter for the court’s discretion.” Perez v. Posse
Comitatus, 373 F.3d 321, 325 (2d Cir. 2004). Whatever may have occurred in state court, it has
no bearing on this Action. The Court has reviewed the filings in this case and determined that
Defendants’ counsel have not engaged in any conduct warranting sanctions. Although Plaintiff

28

is dissatisfied with the content of counsel’s letters and motions, that does not serve as a basis to
impose sanctions. Accordingly, Plaintiff’s Motion for Sanctions is denied.
G. Plaintiff’s Recusal Request
In one of her filings, Plaintiff accuses the Court of accepting bribes and of bias. (See
generally Dkt. No. 44.) Under 28 U.S.C. § 455(a), a judge must “disqualify himself in any
proceeding in which his impartiality might reasonably questioned.” Recusal under this section
“is not limited to cases of actual bias; rather, the statute requires that a judge recuse himself
whenever an objective, informed observer could reasonably question the judge’s impartiality,
regardless of whether he is actually partial or biased.” United States v. Bayless, 201 F.3d 116,
126 (2d Cir. 2000). Here, there is no basis for the Court to recuse itself. It is certainly not
accepting bribes from Defendants’ counsel (or anybody) and has no stake in the outcome of this
litigation. The Court has presided over this case as it does all of the other cases before it, by
endeavoring to follow and apply the law fairly to all parties. Plaintiff’s unsubstantiated
allegations of bias therefore do not serve as a basis upon which this Court will recuse itself.
III. Conclusion
For the foregoing reasons, the Motions to Dismiss are granted and the Motion for
Sanctions and the recusal request are denied. All of the claims asserted in the Amended
Complaint are dismissed without prejudice. Plaintiff may, within 30 days from the date of this
Opinion, file an amended pleading correcting the deficiencies identified above. The amended
pleading may only contain claims that Plaintiff is asserting on her own behalf, i.e., she must
allege how her rights were violated. If Plaintiff fails to abide by the 30-day deadline, this Action
likely will be dismissed with prejudice.

29

The Clerk of Court is respectfully directed to terminate the pending Motions, (Dkt. Nos.
34, 43, 60, 62, 67, 76), and to mail a copy of this Opinion to Plaintiff.
SO ORDERED.
Dated: Septemberdk._, 2017
White Plains, New York

30