Spring et al v. Allegany-Limestone Central School District et al
Filing
70
DECISION AND ORDER GRANTING in part and DISMISSING as moot in part Defendant Lowry's 40 Motion to Dismiss and the School Defendants' 42 Motion to Dismiss; DISMISSING as moot Defendants Roewe and Easton's 60 [62) Motions to Dismiss; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United State District Judge on 9/30/2015. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KERI SPRING; EUGENE SPRING; JULIANNE
SPRING; EUGENE SPRING and KERI
SPRING on behalf of GREGORY SPRING;
and KERI SPRING, as the duly appointed
administrator of the ESTATE OF GREGORY
SPRING,
Plaintiffs,
v.
DECISION AND ORDER
14-CV-476S
ALLEGANY-LIMESTONE CENTRAL SCHOOL
DISTRICT, et al.,
Defendants.
I. INTRODUCTION
Plaintiffs commenced this action in June 2014 asserting claims pursuant to 42
U.S.C. § 1983; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“A.D.A.”);
the Rehabilitation Act of 1973, 29 U.S.C. § 701 (“Rehabilitation Act”); New York Civil
Rights Law § 79-n; New York Estate Powers & Trusts Law § 5-4.1; and New York State
common law. Following the filing of motions to dismiss the Complaint by several of the
Defendants, Plaintiffs timely filed an Amended Complaint as of right, thereby mooting
the initial motions.
Presently before this Court are Defendants’ subsequently filed
motions to dismiss the Amended Complaint.
This action follows the tragic suicide of high school student Gregory Spring on
June 17, 2013.
As described in the Amended Complaint, Gregory was a special
education student who suffered from disabilities including, but not limited to, Tourette’s
1
Syndrome, ADHD, and Callosum Dysgensis. 1 (Am Compl ¶¶ 32-33.) Plaintiffs allege
that for an extended period of time during middle school and high school, Gregory “was
subjected to numerous acts of fear and intimidation including, but not limited to, teasing,
taunting, bullying, name calling, violence, offensive touching, hitting, interference with
relationships, and public and private humiliation – conduct motivated in whole or part by
his disabilities.” (Am Compl ¶ 41.) This conduct was “minimized, dismissed and ignored
by the school district’s staff and officials, including the named Defendants.” (Am Compl
¶ 41.)
Plaintiffs’ more specific allegations describe an incident in April 2012 when
Gregory was disciplined and removed from the school’s baseball team as a result of
“horseplay” by Defendants Eric Hamphill and Christopher Kenyon, who were both
teachers and coaches. (Am Compl ¶ 49.) “These Defendants tolerated the same or
similar horseplay and conduct by others without disability and then allowed Plaintiff to
be ridiculed by teammates without consequence.” (Am Compl ¶ 49.) Plaintiffs further
assert that:
Defendant Kenyon failed to take action to stop or prevent further torment
of [Gregory,] causing him severe emotional distress and a manifestation of
his disabilities to react and he used a swear word referencing the team.
Defendant Kenyon implemented further discipline and sent Gregory home
early from practice and notified his mother, Plaintiff Keri Spring, that
Gregory was removed from the team.
(Am Compl ¶ 50.)
Further, on November 8, 2012:
In response to unrelenting harassment and bullying by [fellow student]
1
Plaintiffs offer no detail regarding this alleged disability. The “corpus callosum” is the “great band of
commissural fibers uniting the cerebral hemisphere.” Merriam Webster’s Medical Desk Dictionary at 145
(1993). Dysgenesis refers to defective development. Id. at 196.
2
Defendant Michael Easton, Gregory Spring physically responded to
Easton. Upon information and belief, Gregory Spring’s conduct was a
manifestation of his disability.
Gregory Spring was immediately
suspended and punished by Defendant [Assistant Principal] Straub for this
incident. No manifestation hearing 2 was provided or waived by Plaintiffs
even though multiple students came forward to support Gregory’s claim
that said student engaged in acts of bullying toward him. Upon
information and belief, Defendant Straub failed to discipline [Easton].
(Am Compl ¶¶ 21, 27, 42.) Plaintiffs further allege that following this incident, Defendant
Easton, “with the aid, encouragement, sanction, and facilitation of the School District
Defendants, on or about November, 2012 initiated criminal prosecution against Gregory
Spring. Upon information and belief, Defendant Straub met with Defendant Easton and
his parents, encouraged and facilitated the contact of law enforcement authorities to
bring charges against Gregory Spring.” (Am Compl ¶ 56.) Defendants Easton and
fellow student Defendant Jacob Roewe subsequently escalated their harassment of
Gregory, and although Gregory’s mother, Plaintiff Keri Spring, met with Defendant
Straub on “no less than six (6) different occasions between January and June 2013” to
complain “regarding Defendant Easton and his behavior,” no action was taken against
Easton. (Am Compl ¶ 56.)
Plaintiffs also allege that “[d]ue to Defendants’ acts and omissions, including
negligence, gross negligence, recklessness and/or deliberate indifference to disabilities,
bullying, and discriminatory conduct against Gregory Spring, they caused him severe
2
Under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., a child with a
disability who is found to have violated a code of student conduct is entitled to a determination whether
the violating conduct was caused by or related to the student’s disability or the school’s failure to
implement the child’s individualized education plan prior to any change in the child’s educational
placement. 20 U.S.C. § 1415(k)(1)(E). Because Plaintiffs are not asserting a violation of IDEA or a §
1983 claimed based on such a violation (see Pls’ Mem in Opp’n at 8-15, Docket No. 49), this Court need
not consider whether a sufficient change in placement has been alleged here. Honig v. Doe, 484 U.S.
305, 326, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988) (finding that a suspension for ten days or more
constitutes a change in educational placement within the meaning of IDEA, but deferring to Department of
Education’s position that suspensions shorter than that did not).
3
emotional distress, humiliation, embarrassment, and self-loathing causing and/or
contributing to his suicide on June 17, 2013.”
(Am Compl ¶ 54.) Two days after
Gregory’s suicide, on June 19, 2013, Defendant Diane Lowry, a teacher’s assistant,
“authored and spoke statements and posted comments via internet and on-line
pertaining to Gregory Spring and his death, falsely accusing him of misconduct and
otherwise disparaging him and inflicting severe emotional distress upon the Plaintiffs
herein.”3 (Am Compl ¶¶ 22, 57.) “Upon information and belief, Defendant Lowry
breached her duty to protect the rights of students and also violated Gregory Spring’s
constitutional and educational rights of confidentiality concerning his education and
records therefore.” (Am Comp ¶ 58.)
For the reasons that follow, the motions of the School Defendants and Diane
Lowry 4 (Docket Nos. 40, 42) are granted to the extent that these Defendants seek
dismissal of Plaintiffs’ first seven causes of action. (See Koch Decl ¶ 6, Docket No. 40-1
(Defendant Lowry incorporated by reference the arguments of codefendants).) The
remainder of these motions, as well as the motions for dismissal of Defendants Roewe
and Easton (Docket Nos. 60, 62), are dismissed as moot inasmuch as this Court
declines to exercise supplemental jurisdiction over the remaining state law claims.
3
The specific statements or contents of the comments are not described in the Amended Complaint.
“The School Defendants” as referenced hereinafter refer to Defendants Allegany-Limestone Central
School District; the Board of Education of the School District; Karen Geelan, Superintendent; Joe Zimmer,
President; Phil Quinlan, Vice President; Matthew Kahn, Member; Jeff Black, Member; David Farrell,
Member; Jay King, Member; Kim Palmer, Member; Sue Schifley, Member; Maggie Nuss, Member; Kevin
Straub, Principal or Assistant Principal, depending on where referenced; Eric Hemphill, Teacher/Coach;
Christopher Kenyon, Teacher/Coach; John Wolfgang, Psychologist; and Robert Decker, Psychologist.
The Court notes that Defendant Diane Lowry is separately represented and has separately moved for
dismissal of the claims against her. Nonetheless, to the extent that Plaintiffs allege claims against the
“School District and its Defendant employees and agents,” the Court will construe the claim as being
asserted against both the School Defendants and Lowry.
4
4
II. DISCUSSION
Rule 12 (b)(6) allows dismissal of a complaint for "failure to state a claim upon
which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss
pursuant to Rule 12 (b)(6), this Court must accept all factual allegations in the complaint
as true and make all reasonable inferences in a plaintiff’s favor. ATSI Commc’ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (assumption of truth applies only to
factual allegations and is inapplicable to legal conclusions). As summarized by the
Supreme Court:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” As the Court held in [Bell Atl. Corp. v.] Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929, the pleading standard Rule 8
announces does not require “detailed factual allegations,” but it demands
more
than
an
unadorned,
the-defendant-unlawfully-harmed-me
accusation. Id., at 555, 127 S. Ct. 1955 (citing Papasan v. Allain, 478 U.S.
265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A pleading that offers
“labels and conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” 550 U.S., at 555, 127 S. Ct. 1955. Nor does a
complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id., at 557, 127 S.Ct. 1955.
Iqbal, 556 U.S. 662, 677-78.
Instead, in order to survive a motion to dismiss, a
complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)); ATSI
Commc’ns, Inc., 493 F.3d at 98.
A.
Constitutional Claims
Plaintiffs’ first five causes of action allege that “Defendants Allegany-Lim[e]stone
School District and its Defendant employees and agents,” presumably although not
5
clearly referencing all named Defendants save the two students, violated the rights of
Gregory Spring and his mother, Plaintiff Keri Spring, under the U.S. and New York state
constitutions.
The first three causes of action seek damages for these violations
pursuant to 42 U.S.C. § 1983. This section imposes civil liability upon persons who,
acting under color of state law, deprive an individual of rights, privileges, or immunities
secured by the Constitution and laws. See 42 U.S.C. § 1983. Section 1983 does not
itself provide a source of substantive rights, but instead provides the mechanism by
which a plaintiff may seek vindication of federal rights conferred elsewhere. Graham v.
Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
With respect to the individual defendants, liability under § 1983 may be imposed
only for an actor’s personal involvement in a constitutional tort, and may not be imposed
under a theory of vicarious liability. See Hayut v. State Univ. of N.Y., 352 F.3d 733, 753
(2d Cir. 2003); see also Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d
107, 127 (2d Cir. 2004) (individual liability may not be based merely on a position of
high authority). Prior to the Supreme Court’s decision in Iqbal, it was generally held that
the personal involvement of a defendant, particularly supervisors, could be shown by
allegations that:
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the defendant created a
policy or custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference to the rights of
[the plaintiff] by failing to act on information indicating that unconstitutional
acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Back, 365 F.3d at 127. In Iqbal,
6
however, the Supreme Court rejected the argument that “a supervisor's mere
knowledge of his subordinate's discriminatory purpose amounts to the supervisor's
violating the Constitution,” finding that “purpose rather than knowledge” was relevant to
the issue of liability. 556 U.S. at 677.
The Second Circuit has acknowledged, but not expressly held, that all five Colon
factors may no longer be applicable post-Iqbal. See Raspardo v. Carlone, 770 F.3d 97,
117 (2d Cir. 2014) (acknowledging the issue but not deciding the exact contours of the
supervisor liability test post-Iqbal); Grullon v. City of New Haven, 720 F.3d 133, 139 (2d
Cir. 2013) (noting that Iqbal “may have heightened the requirements for showing a
supervisor’s personal involvement with respect to certain constitutional violations”).
Instead, the Court, as well as several district courts, have highlighted the Supreme
Court’s emphasis that the factors necessary to establish a Bivens claim, the federal
counterpart to the § 1983 state actor claims at issue here, “will vary with the
constitutional provision at issue.” Iqbal, 556 U.S. at 676 (a First or Fifth amendment
invidious discrimination claim must state that the defendant acted with discriminatory
purpose); see Turkmen v. Hasty, 789 F.3d 218, 250 (2d Cir. 2015) (the proper inquiry is
not dependent on the name bestowed upon a particular theory or standard, but rather
whether that standard reflects the elements of the underlying constitutional tort); see
also Grullon v. City of New Haven, 720 F.3d at 139; Lloyd v. City of New York, 43 F.
Supp. 3d 254, 266 (S.D.N.Y. 2014); Thomspon v. Pallito, 949 F. Supp. 2d 558, 574-75
n. 12 (D. Vt. 2013); Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009).
With respect to the School District and the School Board, these entities are
considered “persons” within the meaning of § 1983 and subject to suit under that
7
provision. Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011); Huff v. West Haven Bd.
of Educ., 10 F. Supp. 2d 117, 121 (D. Conn. 1998). However, as municipal entities,
these defendants cannot be held liable under a respondeat superior theory, but instead
liability will attach only if a violation of right resulted from the “ ‘government's policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy.’ ” Nagle, 663 F.3d at 116 (quoting Monell v. Dep't of
Soc. Serv. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978)). Further, absent an underlying constitutional violation, a Monell claim against a
municipality cannot lie. Rankel v. Town of Somers, 999 F.Supp.2d 527, 550 (S.D.N.Y.
2014) (citing Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) (Monell does not
create a separate right of action)); see Chambers v. North Rockland Central Sch. Dist.,
815 F. Supp. 2d 753, 772 n. 16 (S.D.N.Y. 2011) (no need to address Monell claim
where court concluded the individual defendants did not violate plaintiff’s substantive
due process rights); Vassallo v. Lando, 591 F. Supp. 2d 172, 202 (E.D.N.Y. 2008) (no
Monell claim can lie against a municipality absent an underlying constitutional violation
committed against a plaintiff by the individual defendants). The Court will therefore first
consider the claims that individual Defendants have committed constitutional violations.
1. Failure to Protect
Plaintiffs’ first cause of action on behalf of Gregory alleges a violation of the
Fourteenth Amendment because:
Gregory Spring and Defendants Allegany-Lim[e]stone School District and
its Defendant employees and agents had a special relationship whereby
Defendants had a constitutional duty to protect Gregory Spring.
Alternatively, said Defendants exposed Gregory Spring to danger by
implicitly and explicitly condoning or allowing acts of bullying against
Gregory Spring, and subjecting him to discipline and otherwise treating
8
him disparately as to other students/instigators and allowing faculty to
speak negatively about Gregory Spring in the presence of students and
to his parents.
(Am Compl ¶ 67.) Plaintiffs further allege that “Defendants were deliberately and/or
recklessly indifferent to the continuous bullying, harassment and discrimination against
Gregory Spring thereby breaching their constitutional duty.” (Id. ¶ 68.)
As the School Defendants note, although not expressly stated, this claim appears
to allege a violation of substantive due process under the Fourteenth Amendment. (Sch
Def Mem of Law at 17, Docket No. 42-6; see Pls’ Mem in Opp’n at 8-15, Docket No. 49
(confirming Plaintiffs’ § 1983 claims are for substantive due process, equal protection,
and first amendment retaliation violations).) The Due Process Clause of the Fourteenth
Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or
property, without due process of law.” See DeShaney v. Winnebago County Dep’t of
Social Servs., 489 U.S. 189, 194, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). A claim
that a plaintiff was deprived of a liberty interest in freedom from unjustified intrusions on
personal security as a result of a defendant’s failure to protect invokes the substantive
rather than procedural component of the Due Process Clause. Id. at 195. However, this
clause “is phrased as a limitation on the State's power to act, not as a guarantee of
certain minimal levels of safety and security.” Id. Thus, as recognized by the Supreme
Court in DeShaney, “nothing in the language of the Due Process Clause itself requires
the State to protect the life, liberty, and property of its citizens against invasion by
private actors.” Id.
There are two recognized exceptions to the DeShaney rule:
First, the state or its agents may owe a constitution obligation to the victim
of private violence if the state had a ‘special relationship’ with the victim.
9
Second, the state may owe such an obligation if its agents “in some way
had assisted in creating or increasing the danger to the victim.
Matican v. City of N.Y., 524 F.3d 151, 155 (2d Cir. 2008) (internal citations omitted), cert
denied, 555 U.S. 1047 (2008); see Ying Jing Gan v. City of N.Y., 996 F2d 522, 533 (2d
Cir. 1993); P.W. v. Fairport Central Sch. Dist., 927 F. Supp. 2d 76, 81 (W.D.N.Y. 2013);
Chambers, 815 F. Supp. 2d at 763-64.
Here, although Plaintiffs referenced a “special relationship” in the Amended
Complaint (¶ 67), that theory appears to be appropriately abandoned in Plaintiff’s
opposition. (Pl’s Mem in Opp’n at 8-9, Docket No. 49 (arguing only that there is
sufficient affirmative conduct alleged to sustain a due process claim “on the basis of the
state created danger theory”).) “[C]ourts in this Circuit and others addressing cases of
peer-on-peer bullying in schools have held that the special relationship doctrine does
not apply in the public school context, even if school attendance is compulsory.” P.W.,
927 F. Supp. 2d at 81-82 (collecting cases); Chambers, 815 F. Supp. 2d at 764 n. 10;
see also Reid v. Freeport Public Sch. Dist., -- F. Supp. 3d --, 2015 WL 869009, *6
(E.D.N.Y. 2015); Crispim v. Athanson, 275 F. Supp. 2d 240, 246-47 (D. Conn. 2003).
Under the “state-created danger” exception to DeShaney, “a plaintiff seeking to
state such acclaim must show more than the State’s general knowledge of a danger; he
must show that the State assisted in ‘creating or increasing the danger that the victim
faced at the hands of a third party.’ ” Campbell v. Brentwood Union Free Sch. Dist, 904
F. Supp. 2d 275, 280 (E.D.N.Y. 2012) (quoting Matican, 524 F.3d at 157). Passive
conduct, such as the failure to punish, does not fall within this exception; instead, there
must be an affirmative act on the part of a defendant. Pena v. DePrisco, 432 F.3d 98,
109-10 (2d Cir. 2005) (comparing Hemphill v Schott, 141 F.3d 412 (2d Cir. 1998) (police
10
officers’ actions in allowing store manager to join in pursuit of suspect and returning the
manager’s gun he then used to shoot plaintiff created or increased the danger) with
Pitchell v. Callan, 13 F.3d 545 (2d Cir. 1994) (no constitutional violation when off-duty
police officer failed to stop another off-duty police officer from shooting a houseguest);
see Campbell, 904 F. Supp. 2d at 280; Reid, 2015 WL 869009 at *6-7.
Here, with few exceptions, the majority of the allegations in the Amended
Complaint are not attributed to any specific individual Defendant. Because the personal
involvement of a defendant is a prerequisite to an award of damages under § 1983, a
plaintiff cannot rely on a group pleading against all defendants without making specific
individual factual allegations. See Atuahene v. City of Hartford, 10 F. App’x. 33, 34 (2d
Cir. 2001) (even under a liberal pleading standard, dismissal of constitutional claims
warranted where plaintiff “lump[ed] all the defendants together in each claim and
providing no factual basis to distinguish their conduct); Thomas v. Venditto, 925 F.
Supp. 2d 352, 363 (E.D.N.Y. 2013) (citing Bertuglia v. City of N.Y., 839 F. Supp. 2d 703,
723 n.4 (S.D.N.Y. 2012)). Further, to the extent Plaintiffs do state more specific
allegations, the conduct alleged is the failure to adequately discipline and supervise.
(Am Compl ¶¶ 42 (Defendant Straub failed to discipline Easton), 45 (Defendants
Geelan, Straub, Schifley, and King failed to correct ongoing bullying and harassment),
49 (Defendants Hemphill and Kenyon tolerated horseplay by other students).) Such
allegations are insufficient to plausibly state a substantive due process claim based on a
state-created danger. P.W., 927 F. Supp. 2d at 83 (allegations that named defendant
inadequately responded and disciplined student bullies insufficient to state a claim);
H.B. v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 WL 4477552, *10-11
11
(S.D.N.Y. 2012); Chambers, 815 F. Supp. 2d at 770-71 (failure to prevent verbal
harassment, including bullying, does not in and of itself rise the level of a constitutional
violation) (collecting cases); Scruggs v. Meriden Bd. of Educ., No. 03–CV–2224, 2007
WL 2318851, *12 (D.Conn. Aug. 10, 2007) (state-created danger theory does not
impose duty on defendants to protect students from bullying and harassment even
where school knew about danger) (collecting cases).
2.
Equal Protection
Plaintiffs’ second cause of action alleges that Gregory was discriminated against
on the basis of his disabilities and treated disparately in comparison to non-disabled
students. (Am Compl ¶ 72.) “[S]aid disparate treatment was, upon information and
belief, intentional and based on his disabilities.” (Id.) “Inter alia, Defendants AlleganyLim[e]stone School District and [its] Defendant employees and agents failed to take
action to protect Gregory Spring from bullying, harassment and discrimination because
of his disabilities as well as themselves engaging in discrimination because of his
disabilities.” (Am Compl ¶ 73.)
Under the Equal Protection Clause of the Fourteenth Amendment, a state may
not “deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. To maintain an equal protection claim, a Plaintiff must “show
adverse treatment of individuals compared with other similarly situated individuals and
that such selective treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.” Miner v. Clinton County, 541 F.3d 464, 474 (2d Cir.
2008) (internal quotation marks, brackets, and citation omitted), cert denied, 556 U.S.
12
1128 (2009); G.D.S. ex rel. Slade v. Northport-East Northport Union Free Sch. Dist.,
915 F. Supp. 2d 268, 277 (E.D.N.Y. 2012). It must also be shown that the alleged
disparity in treatment cannot survive the appropriate level of scrutiny. Phillips v. Girdich,
408 F.3d 124, 129 (2d Cir. 2005); see Morales v. New York, 22 F. Supp. 3d 256, 274-75
(S.D.N.Y. 2014). To that end, a “disability is not a suspect classification under the
Equal Protection Clause.” Chick v. County of Suffolk, 546 F. App’x 58, 60 (2d Cir. 2013)
(citing Suffolk Parents of Handicapped Adults v. Wingate, 101 F.3d 818, 824 n. 4 (2d
Cir.1996), cert denied, 520 U.S. 1239 (1997)); Beckford v. Irvin, 49 F. Supp. 2d 170,
177 (W.D.N.Y. 1999). As such, in order to determine whether there was a violation, this
Court considers whether Defendants’ alleged actions were rationally related to a
legitimate government purpose. Pape v Bd. Of Educ. Of the Wappingers Ctl. Sch. Dist.,
No. 07-CV-8828(KMK), 2009 WL 3151200, *6 (S.D.N.Y. Sept. 29, 2009) (citing City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446, 105 S. Ct. 3249, 87 L. Ed. 2d
313 (1985)).
In their opposition to the School Defendants’ motion to dismiss, Plaintiffs limit this
claim to one based on deliberate indifference. (Pls Mem in Opp’n at 9-13, Docket No.
49.) “Courts have repeatedly held that teachers, administrators, and boards of
education can be held liable under the Fourteenth Amendment if they have been
deliberately indifferent to discriminatory harassment of a student at school by other
children.” Preston v. Hilton Cent. School Dist., 876 F. Supp. 2d 235, 244 (W.D.N.Y.
2012); G.D.S. ex rel. Slade, 915 F. Supp. 2d at 277; see Gant v. Wallingford Bd. of
Educ., 195 F.3d 134, 141 (2d Cir. 1999); see generally Davis v. Monroe Bd. of Educ.,
526 U.S. 629, 651, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). However, “[t]o succeed
13
on an equal protection claim in the harassment context, a student must show that he
was afforded a lower level of protection as opposed to other students, and that this
lower level of protection was the result of his [protected status].” Preston, 876 F. Supp.
2d at 244 (quoting T.K. v. N.Y.C. Dep’t of Educ., 779 F.Supp.2d 289, 316 (E.D.N.Y.
2011)). To survive a motion to dismiss under Rule 12(b)(6), there must be sufficient
allegations to show that each defendant’s actions or inactions were unreasonable in
light of the known circumstances. Preston, 876 F. Supp. 2d at 244 (citing Gant, 195
F.3d at 141). Thus, “[w]hile legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations [and the] factual allegations must be
sufficient to support necessary legal conclusions.” Ruston v. Town Bd. for the Town of
Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679); Preston,
876 F. Supp. 2d at 244-45.
Here, there are insufficient factual allegations to support a claim of deliberate
indifference with respect to any individual defendant.
Plaintiffs’ specific factual
allegations – as opposed to the bare conclusory allegations that Defendants simply
knew of and ignored student harassment of Gregory -- address only Defendants Straub,
Hamphill, and Kenyon. (Am Compl ¶¶ 42, 49.) Defendants Hamphill and Kenyon are
alleged to have removed Gregory from the school’s baseball team in April 2012 as a
result of “horseplay,” despite having tolerated the same or similar horseplay and
conduct by others without disability, and “then allowed Plaintiff to be ridiculed by
teammates without consequence.” (Am Compl ¶ 49.)
Plaintiffs failed, however, to
describe any specific similar incident involving a non-disabled student, or any other fact
that would provide context for considering the reasonableness of the individual
14
Defendants’ actions. See Preston, 876 F. Supp. 2d at 244-45 (failure to set forth any
supporting facts that would render conclusory allegations plausible, such as facts
identifying
similarly-situated
students
or
describing
the
treatment
of
female
complainants by the defendants in like circumstances, warranted dismissal of genderbased equal protection claim).
With respect to Defendant Straub, Plaintiffs allege that in November 2012:
In response to unrelenting harassment and bullying by [fellow student]
Defendant Michael Easton, Gregory Spring physically responded to
Easton. Upon information and belief, Gregory Spring’s conduct was a
manifestation of his disability.
Gregory Spring was immediately
suspended and punished by Defendant [Assistant Principal] Straub for this
incident. No manifestation hearing was provided or waived by Plaintiffs
even though multiple students came forward to support Gregory’s claim
that said student engaged in acts of bullying toward him. Upon
information and belief, Defendant Straub failed to discipline [Easton].
(Am Compl ¶ 42.) No further detail is offered regarding Easton’s conduct during the
incident, and the reference to Gregory “physically respond[ing]” implies that Easton’s
conduct was verbal. (Id.) Absent more specific allegations, there is no factual basis for
concluding that Gregory’s punishment was not rationally related to his escalating
conduct, but that he was instead punished more severely due to his disabilities.
3.
First Amendment Retaliation
Plaintiffs’ third cause of action alleges that the School Defendants retaliated
against Gregory and his mother, Keri Spring, for opposing bullying, harassment, and
discrimination in violation of their First Amendment rights. (Am Compl ¶¶ 75-79.) “To
plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right
protected by the First Amendment; (2) the defendant's actions were motivated or
substantially caused by his exercise of that right; and (3) the defendant's actions caused
15
him some injury.” Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013).
Retaliation may be found where it is shown that a defendant’s conduct effectively chilled
the exercise of his or her First Amendment rights. Dorsett, 732 F.3d at 160 (citing
Curley v. Vil. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). Chilled speech, however, is
not an essential condition of a First Amendment retaliation claim, a violation may also
be established where a defendant’s actions caused the plaintiff some other concrete
harm. Dorsett, 732 F.3d at 160.
Here, Plaintiffs again improperly rely on a group pleading and fail to specify what
particular conduct by each Defendant was retaliatory. Atuahene, 10 F. App’x. at 34; see
Thomas, 925 F. Supp. 2d at 363 (insufficient for a plaintiff to rely on a group pleading);
Bertuglia, 839 F. Supp. 2d at 723 n. 4 (same); see Elmer v. Fischer, No. 09-CV6505CJS, 2013 WL 6628258, *4 (W.D.N.Y. 2013) (plaintiff’s failure to attribute alleged
misconduct to any particular defendant warranted dismissal of claim). Although there
are numerous references to Plaintiff Keri Spring notifying and complaining to
Defendants generally regarding Gregory’s mistreatment, there are no factual allegations
explaining what specific conduct by any individual Defendant constituted retaliation for
which specific complaint. Although Plaintiffs allege that Keri Spring met with Defendant
Straub “on no less than six (6) different occasions between January and June 2013
seeking action and intervention,” (Am Compl ¶ 56), the only specific conduct alleged on
Straub’s part that has the potential to be construed as causing concrete harm occurred
previously in November 2012, and therefore Straub’s alleged conduct cannot be said to
be in retaliation for complaints not yet made. (Am Compl 42 (alleged failure to punish
Defendant Easton), 56 (alleged facilitation of criminal prosecution of Gregory).)
16
Plaintiffs have therefore failed to state a claim of First Amendment retaliation with
respect to any individual Defendant.
4.
Section 1983 Claims against the Defendant School District and School
Board
As noted above, absent an underlying constitutional violation by an individual
Defendant, a Monell claim against the municipal defendants, the School District and
School Board, cannot lie. Rankel v. Town of Somers, 999 F.Supp.2d 527, 550 (S.D.N.Y.
2014) (citing Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006)); see Chambers v.
North Rockland Central Sch. Dist., 815 F. Supp. 2d 753, 763-64 (S.D.N.Y. 2011) (no
need to address Monell claim where court concluded the individual defendants did not
violate plaintiff’s substantive due process rights); Vassallo v. Lando, 591 F. Supp. 2d
172, 202 (E.D.N.Y. 2008) (no Monell claim can lie against a municipality absent an
underlying constitutional violation committed against a plaintiff by the individual
defendants).
Accordingly, the § 1983 claims are dismissed as against these
Defendants as well.
5.
New York State Constitutional Claims
Plaintiffs’ fourth cause of action alleges a violation of Article I, Section 6 of the
New York state constitution. (Am Compl ¶ 81-82.) This provision provides, in addition to
several criminal procedure safeguards, that “[n]o person shall be deprived of life, liberty
or property without due process of law.” In the absence of a clear ruling that a different
standard is to be applied, New York courts generally interpret the due-process
guarantees of the New York Constitution and the United States Constitution as
coextensive. Oneida Indian Nation of N.Y. v. Madison Cty., 665 F.3d 408, 427 n. 13 (2d
Cir. 2011); see People v. Paris, 229 A.D.2d 926, 927, 646 N.Y.S.2d 737 (N.Y.A.D. 4th
17
Dep’t 1996), lv denied, 88 N.Y.2d 1070 (1996) (utilizing federal standard for state
constitutional claim absent a convincing showing that a different standard should be
applied); see generally People v. Kohl, 72 N.Y.2d 191, 197, 527 N.E.2d 1182 (1988)
(discussing factors to be considered prior to applying a different standard under the
state constitution). No basis for a broader state interpretation has been shown here, and
Plaintiffs’ allegations in support of this state claim are identical to those asserted under
Plaintiff’s first cause of action for substantive due process. (Am Compl ¶¶ 67-68, 81-82.)
Dismissal is therefore warranted for the same reason.
Plaintiffs’ fifth cause of action alleges, like their second cause of action, that the
School Defendants failed to take action to protect Gregory from discrimination in
violation of Article I, Section 11 of the New York state constitution, which precludes the
denial of “the equal protection of the laws of this state or any subdivision thereof.”
“Because the Equal Protection Clauses of the federal and New York Constitutions are
coextensive,” this claim must be dismissed for the same reasons underlying dismissal of
Plaintiffs’ second cause of action. Town of Southold v. Town of East Hampton, 477 F.3d
38, 53 n. 3 (2d Cir. 2007); Bloomingburg Jewish Educ. Ctr., -- F. Supp. 2d --, 2015 WL
3604300, *15 (S.D.N.Y. 2015).
Moreover, although the New York Court of Appeals has recognized a private
right of action for equal protection violations under the State Constitution, this damages
remedy is only available where necessary to ensure the full realization of a plaintiff’s
constitutional rights. See Wahad v. F.B.I., 994 F. Supp. 237, 239 (S.D.N.Y. 1998)
(citing Brown v. State of New York, 89 N.Y.2d 172, 187-89, 674 N.E.2d 1129 (1996)).
Thus, the recognition of a state constitutional violation claim is neither necessary nor
18
appropriate where a plaintiff can pursue remedies under 42 U.S.C. § 1983 or New York
Executive or Civil Rights Law. See Biswas v. City of N.Y., 973 F. Supp. 2d 504, 522
(S.D.N.Y. 2013), appeal dismissed, 576 F. App’x 58 (2014); G.D.S. ex rel. Slade, 915 F.
Supp. 2d at 280; see generally Brown, 89 N.Y.2d at 192. The fact that Plaintiffs failed to
adequately state such claims does not undermine the fact that those avenues of redress
were available. The fourth and fifth causes of action are therefore also dismissed.
B.
ADA and REHABILITATION ACT
Plaintiffs’ sixth and seventh causes of action allege the School Defendants
violated Title II of the ADA and the Rehabilitation Act. Title II of the ADA provides that
“no qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132;
Disabled in Action v. Bd. of Elections in City of N.Y., 752 F.3d 189, 196 (2d Cir. 2014).
Similarly, Section 504 of the Rehabilitation Act “prohibits programs and activities
receiving federal financial assistance from excluding, denying benefits to, or
discriminating against ‘otherwise qualified’ ” individuals with a disability. McElwee v.
Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (quoting 29 U.S.C. § 794(a)); (see
Am Compl ¶ 9 (alleging the Defendant School District receives federal financial
assistance). Plaintiffs allege in these claims that:
Inter alia, Defendants failed to take action to protect Gregory Spring from
bullying, harassment and discrimination because of his disabilities as well
as themselves engaging in discrimination because of his disabilities.
Defendants also retaliated against Gregory Spring for opposing said
bullying, harassment and discrimination. Defendants also retaliated
against Keri Spring for advocating for the disabled by alternately placating
and reassuring her that something would be done and then deliberately
and stubbornly refusing to do so, instead implicating her son and his
19
upbringing that was the cause [sic]. Such conduct ultimately resulted in
the suicide of Gregory and the loss of the Plaintiffs’ son and brother.
(Am Compl ¶ 93, 99.)
Accordingly, Plaintiffs are alleging separate claims of
discrimination and retaliation under each statute.
1.
Discrimination based on Disability
Generally, “[c]laims under Title II of the ADA and section 504 of the Rehabilitation
Act are analyzed identically.” Preston v. Hilton Cent. School Dist., 876 F. Supp. 2d 235,
241 (W.D.N.Y. 2012) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.
2003)).
The prohibition
against discrimination
under these statutes
includes
discrimination in access to a free appropriate public education through special
education and related services. Preston, 876 F. Supp. 2d at 241.
To state a prima
facie cause of action under the relevant provisions of the ADA or Rehabilitation Act, a
plaintiff must show “ ‘(1) that [he] is a qualified individual with a disability; (2) that the
defendants are subject to [the pertinent statute]; and (3) that [he] was denied the
opportunity to participate in or benefit from defendants' services, programs, or activities,
or was otherwise discriminated against by defendants, by reason of [his] disability.’”
Preston, 876 F. Supp. 2d at 241 (quoting Harris v. Mills, 572 F.3d 66, 73-74 (2d Cir.
2009)). “Denial of the opportunity to participate in or benefit from defendants' services
does not require that the student be physically prevented from access: rather, a plaintiff
must establish harassment by students that is so severe, pervasive, and objectively
offensive, and that so undermines and distracts from the victims' educational
experience, that the victim-students are effectively denied equal access to an
institution's resources and opportunities.” Preston, 876 F. Supp. 2d at 241 (internal
quotation marks, ellipses, and brackets removed) (quoting Davis v. Monroe County Bd.
20
of Educ., 526 U.S. 629, 650–51, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999)).
This Court agrees with the School Defendants that Plaintiffs failed to sufficiently
plead that Gregory suffered from a qualifying disability within the meaning of these
statutes. A “disability” is defined as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment....” 42 U.S.C.
§ 12102(1); see 29 U.S.C. § 705(20)(B). “Major life activities” are further defined to
include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” 42 U.S.C. § 12102(2).
Here, Plaintiffs alleged that Gregory was in fact disabled, and that those
“disabilities included but were not limited to Tourette’s Syndrome, ADHD, and Callosum
Dysgenesis.” (Am Compl ¶ 33.) No further details are alleged, and Plaintiff’s argument
that “it is not unreasonable to infer that such disabilities interfered with major life
activities” is without merit. (Pls’ Mem in Opp’n at 16, Docket No. 49); see Hedges v.
Town of Madison, 456 F. App’x 22, 24 (2d Cir. 2012) (even under liberal pleading
standards, a court is not required to infer the existence of a disability as defined by
statute from a mere list of medical conditions); Tylicki v. St. Onge, 297 F. App’x 65, 6667 (2d Cir.
2008) (finding failure to adequately allege a qualifying disability where
complaint contained no allegations describing how plaintiff’s mental condition limited a
major life activity); Heckmann v. Town of Hempstead, No. CV 10-5455(SJF)(GRB),
2012 WL 1031503, *4 (E.D.N.Y. Feb. 24, 2012) (dismissal appropriate where a plaintiff
fails to allege how an impairment limits a major life activity), rep & rec adopted by 2012
21
WL 1032776 (EDNY Mar. 27, 2012). The brief references to Gregory exhibiting
“disability related tics” fails to describe the impairment of a major life activity. (Am Compl
¶ 41, 56.) Further, the fact that a plaintiff receives special education services does not
necessarily mean that the plaintiff qualifies as an individual with a disability under the
ADA or Rehabilitation Act. B.C. v. Mount Vernon City School Dist., No. 11 CV 1411
(VB), 2014 WL 4468082, *7-8 (S.D.N.Y. Aug. 28, 2014) (noting that ADA and the
Rehabilitation Act’s definitions are more stringent than IDEA’s definition of disability)
(citing Ellenberg v. New Mexico Military Inst., 572 F.3d 815, 820-22 (10th Cir. 2009)).
Plaintiffs therefore failed to allege that Gregory was disabled within the meaning of
these statutes, and these claims must be dismissed.
2.
Retaliation under the ADA and Rehabilitation Act
Plaintiffs also allege retaliation under these statutes.
The elements of a
retaliation claim under either the ADA or Section 504 are: “(i) a plaintiff was engaged in
protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected
activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv)
a causal connection exists between the protected activity and the adverse action.”
Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir. 2002),
superseded by statute on other grounds by 42 U.S.C. § 12102(3)(A). (internal quotation
marks and citation omitted); see Eskenazi-McGibney v. Connetquot Central Sch. Dist., - F. Supp. 3d --, 2015 WL 500871, *10 (E.D.N.Y. 2015).
The Amended Complaint fails to sufficiently allege that any Plaintiff engaged in
protected activity under the ADA or Rehabilitation Act. Although there are numerous
general allegations that Plaintiff Keri Spring complained of bullying and the lack of an
22
anti-bullying policy (Am Compl ¶¶ 41, 43, 45, 46), Plaintiffs do not allege that Keri
complained that the bullying was on account of Gregory’s purported disability. See
Eskenazi-McGibney., 2015 WL 500871 at *11 (complaints of “bullying,” without more,
are insufficient to establish protected activity under the ADA or Section 504). Plaintiffs
do allege that Keri Spring complained to Defendant Straub on six different occasions
between January and June 2013 about “Defendant Easton and his behavior,” which
was previously alleged to include “mocking and mimicking [Gregory’s] disability related
tics.” (Am Compl ¶ 56.) However, as concluded above, these complaints occurred after
any specific alleged conduct that could be considered retaliatory. (Am Compl ¶¶ 49, 56;
see Pls’ Mem in Opp’n at 17, Docket No. 49 (arguing that Defendant’s Straub’s
“decision to aid the Eastons in an effort to criminally prosecute Gregory” was
retaliatory)); see Marecheau v. Equal Employment Practices Com’n, No. 13-CV2440(VEC), 2014 WL 5026142, *8 (S.D.N.Y. Sept. 30, 2014) (allegations failed to raise
a plausible inference of retaliation where protected activity took place subsequent to the
purported retaliatory action).
Accordingly, both the discrimination and retaliation claims under the ADA and
Section 504 must be dismissed. Further, because the School Defendants raised these
arguments in their motion to dismiss the original complaint, (Sch Defs Mem of Law at
28-31, Docket No. 8-5), and Plaintiffs failed to remedy the deficiency in their Amended
Complaint or provide any further detail in their opposition, these claims are dismissed
with prejudice. 5
5
In light of the conclusion that these claims are subject to dismissal for failure to state a claim, this Court
finds it unnecessary to address the extent to which the § 1983 and federal discrimination claims are
sustainable against the individual Defendants in their personal capacities versus their official capacities.
23
C.
REMAINING STATE LAW CLAIMS
Plaintiffs remaining causes of action arise under New York state and common
law.
Having dismissed all of the federal claims, the issue of whether to exercise
supplemental jurisdiction over these causes of action is a matter within this Court’s
discretion.
Valencia ex rel. Franco v. Lee, 316 F.3d 299, 304-5 (2d Cir. 2003).
Pursuant to 28 U.S.C. § 1367(a), district courts have “supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy.” However, a court may decline to
exercise supplemental jurisdiction over a state law claim where, among other thing, “the
claim a novel or complex issue of State law,” or “the district court has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c). Notably, however,
the exercise supplemental has been found to be an abuse of discretion “where the
federal claims ha[ve] been dismissed at a relatively early stage and the remaining
claims involve[] issues of state law that [are] unsettled.” Valencia, 316 F.3d at 306.
Here, Plaintiffs’ remaining contentions are that (1) all Defendants violated New
York Civil Rights Law § 79-n (eighth cause of action); (2) Defendants are liable for the
wrongful death of Gregory (ninth cause of action); (3) the School Defendants are liable
for negligence and gross negligence (tenth and eleventh causes of action ); and (4)
Defendant Diane Lowry is liable to Plaintiffs Keri, Eugene, and Julianne Spring for
intention, reckless, and/or negligent infliction of emotional distress (twelfth cause of
action). 6
6
In light of this Court’s decision not to exercise supplemental jurisdiction over Plaintiffs’ remaining state
court claims, there is no need to resolve Plaintiffs’ counsel’s request for “leave to withdraw their claims of
Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress as against
Defendant Lowry, without prejudice, pending discovery.” (Bosman Affirm ¶ 6, Docket No. 45-1.)
24
As the School Defendants note, New York Civil Rights Law § 79-n, which
establishes a civil remedy for bias-related violence or intimidation, is a relatively new
law, having been passed by the New York state legislature on July 30, 2010, and
becoming effective in August of that year. It appears, however, that New York courts
have not had the opportunity to consider this new law since its enactment. 7 As such,
there is little guidance for the parties’ arguments whether this statute only provides a
remedy where no other existent laws would provide relief. (See Sch Defs Mem of Law
at 35-36; Sch Defs App’x to Mem, Docket No. 42-7 (Governor’s approval message
stating that “this new civil remedy typically would not be available where existing
discrimination laws already provide protection, such as in employment or public housing
decisions”); Pls’ Mem in Opp’n at 18, Docket No. 49.)
The School Defendants further argue that Plaintiffs’ state tort claims must be
dismissed because Plaintiffs failed to comply with the New York state notice of claim
requirements. See generally N.Y. General Municipal Law §§ 50-e, 50-i; N.Y. Education
Law § 3813. These Defendants argue that Plaintiffs’ notices8 were untimely because
they failed to allege the specific tortious conduct occurring within the 90-day period prior
to their first notice of claim, see N.Y. General Municipal Law § 50-e (a notice of claim
must state the time when, place where, and manner in which a claim arose and be
served within 90 days of that accrual), or that occurred within one year and 90 days of
the commencement of this action. See § 50-i(1) (action must be commenced within one
7
In fact, it appears that the only one federal court has considered a claim under this law, and there the
claim was summarily dismissed without comment. O’Dell v. Jefferson County, N.Y., No. 7:13-CV-1148,
2014 WL 1393949, *4 (N.D.N.Y. Apr. 8, 2014).
8
Plaintiffs filed a second notice of claim after Keri Spring was appointed administrator of Gregory Spring’s
estate, as required for a wrongful death action. See N.Y. General Municipal Law § 50-e(1)(a) (a notice of
claim must be served “within ninety days after the claim arises; except that in wrongful death actions, the
ninety days shall run from the appointment of a representative of the decedent's estate”).
25
year and 90 days of the event underlying the claim or two years after the death at issue
in a wrongful death action); (Sch Defs Mem of Law at 36-37.) Plaintiffs respond that,
among other things, because Gregory was a minor at the time these causes of action
arose, these deadlines were tolled. (Pls’ Mem in Oppp’n at 22-23, Docket No. 49.)
Plaintiffs are correct that infancy tolls the one-year and 90-day statutory limitation
period for commencing an action provided by § 50-e, as well as the time period within
which an application to file a late notice of claim may be made. See Kurz v. N.Y.C.
Health & Hosps. Corp., 174 A.D.2d 671, 671-72, 571 N.Y.S.2d 533 (N.Y.A.D. 2d Dep’t
1991) (citing N.Y. C.P.L.R. § 208); Grellet v. City of N.Y., 118 A.D.2d 141, 144, 504
N.Y.S.2d 671 (N.Y.A.D. 2d Dep’t 1986).
However, “[t]he infancy of the petitioner,
standing alone, does not compel the granting of an application for leave to serve a late
notice of claim,” but instead it is instead only one factor to be considered. Bischert v.
County of Westchester, 212 A.D.2d 529, 530, 622 N.Y.S.2d 308 (N.Y.A.D. 2d Dep’t
1995).
To that end, although the Second Circuit has not definitively ruled on this issue,
district courts in this circuit have held that they are without authority to grant a request to
extend time to serve the notice of claim. Jackson v. City of N.Y., 29 F. Supp. 3d 161,
181 (E.D.N.Y. 2014); Mosdos Chofetz Chaim, Inc. v. Vil. of Wesley Hills, 815 F. Supp.
2d 679, 709-10 (S.D.N.Y. 2011); Dingle v. City of N.Y., 728 F. Supp. 2d 332, 348-49
(S.D.N.Y. 2010); see Parise v. New York City Dept. of Sanitation, 306 F. App’x. 695,
697 n. 2 (2d Cir. 2009) (declining to determine whether a federal court has jurisdiction to
correct or disregard a defective notice of claim).
This conclusion is based on the
requirement in section 50-e that “[a]ll applications under this section shall be made to
26
the supreme court or to the county court . . .” N.Y. General Municipal Law § 50-e(7);
Jackson, 29 F. Supp. 3d at 181; Mosdos Chofetz Chaim, Inc., 815 F. Supp. 2d at 70910.
Accordingly, this Court finds it prudent to decline to exercise supplemental
jurisdiction over the remaining9 state law claims in this case, and therefore these causes
of action will be dismissed without prejudice.
D.
RULE 11 SANCTIONS
In their motions to dismiss, the School Defendants request that this Court impose
sanctions on Plaintiffs for maintaining causes of action in the Amended Complaint
against Defendants Zimmer, Quinlan, Kahm, Black, Farrell, Palmer, and Nuss,
members of the Defendant School Board. (Sch Defs Mem of Law at 43-44; see also
Sch Defs Mem of Law at 39-40, Docket No. 8-5 (raising the same argument in response
to the original Complaint).) They argue that Plaintiff’s continued pursuit of these claims
without any factual allegations regarding these Defendants was frivolous and therefore
subject to sanctions under Rule 11 of the Federal Rules of Civil Procedure. However,
“[a] motion for sanctions must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P.
11(c)(2). Williamson v. Recovery Ltd. Partnership, 542 F.3d 43, 51 -52 (2d Cir. 2008),
cert denied, 555 U.S. 1102 (2009) (failure to meet Rule 11 procedural requirements
warranted denial of sanctions). Defendants’ request is therefore denied.
9
Claims of “constitutional torts” in violation of the New York state constitution are also subject to the
notice of claim requirement. Pratt v. Indian River Cent. School Dist., 803 F. Supp. 2d 135, 146 (N.D.N.Y.
2011) (citing 423 South Salina Street, Inc. v. City of Syracuse, 68 N.Y.2d 474, 490, 503 N.E.2d 63 (1986),
cert denied, 481 U.S. 1008 (1987)). As discussed above, however, this Court finds dismissal of the fourth
and fifth causes of action appropriate because the state law constitutional claims are merely duplicative of
the federal claims. Parise v. New York City Dept. of Sanitation, 306 F. App’x 695, 697 n. 2 (2d Cir. 2009)
(resolution of potentially defective notice of claim unnecessary where dismissal would be required on the
merits).
27
III. CONCLUSION
This Court finds that dismissal of the first seven causes of action with prejudice is
warranted, and the motions of the School Defendants and Defendant Lowry are granted
to that extent. Because this Court declines to exercise supplemental jurisdiction over
the remaining state law claims, the remainder of the motions to dismiss are dismissed
as moot. In so concluding, it must be noted that this Court does not take lightly the
tragic loss of a young life which prompted the initiation of this action, and the finding that
dismissal is warranted should not be construed as minimizing the seriousness of the
events alleged. The absence of more specific factual allegations, however, in addition to
failing to meet the legal requirements necessary to state the particular claims asserted,
simply precludes an understanding of the causal link Plaintiffs assert exists between the
actions or inactions of the individual Defendants and Gregory Spring’s suicide. Instead,
despite Plaintiffs’ counsel having notice of these deficiencies prior to filing the Amended
Complaint, the only specific facts asserted pertain to isolated events in April and
November 2012, approximately seven months prior to Gregory’s death.
IV. ORDERS
IT HEREBY IS ORDERED that the motions to dismiss of Defendant Lowry
(Docket No. 40) and the School Defendants (Docket No. 42) are GRANTED in part and
DISMISSED AS MOOT in part, as stated above;
FURTHER, that the motions to dismiss of Defendants Roewe and Easton
(Docket Nos. 60, 62) are dismissed as moot;
28
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: September 30, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?