Forcucci et al v. Board of Education of Hamburg Central School District

Filing 36

-CLERK TO FOLLOW UP- DECISION AND ORDER terminating 4 Motion to Expedite; defendants motion to dismiss 20 is granted to the extent that counts two, four, and five are dismissed for failure to state a claim upon which relief can be granted; defen dants motion for partial summary judgment as to counts one and three 23 is granted; plaintiffs' cross motion for partial summary judgment 25 is denied; and the complaint is dismissed in its entirety with prejudice. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 8/5/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CATHERINE SCHRAUTH FORCUCCI and
HOLLY A. BALAYA,

No. 1:14-CV-00830 (MAT)
DECISION AND ORDER

Plaintiff,
-vsBOARD OF EDUCATION OF HAMBURG
CENTRAL SCHOOL DISTRICT,
Defendant.

I.

Introduction
Catherine Schrauth Forcucci (“Schrauth Forcucci”) and Holly A.

Balaya (“Balaya”) (collectively, “plaintiffs”) bring this action
pursuant to 42 U.S.C. § 1983, alleging due process and First
Amendment retaliation claims against defendant Board of Education
of Hamburg Central School District (“the Board” or “defendant”).
Presently before the Court are defendant’s Rule 12(b)(6) motion to
dismiss all claims and Rule 56 motion for partial summary judgment
as to counts one and three of the complaint, and plaintiffs’ motion
for partial summary judgment as to counts one and three of the
complaint. For the reasons discussed below, defendant’s motion to
dismiss is granted to the extent that counts two, four, and five
are dismissed for failure to state a claim upon which relief can be
granted, and defendant’s motion for summary judgment as to counts
one and three is granted. Accordingly, the complaint is dismissed
in its entirety.

II.

Factual Background
The following facts are taken from the parties’ submissions in

connection

with

their

cross-motions

for

summary

judgment.

On

May 21, 2013, Schrauth Forcucci was elected to the Board. She
commenced her three-year term on July 1, 2013. On that date, the
Board consisted of seven members, including plaintiffs, president
David Yoviene, vice president Sally Stephenson, Patricia BrunnerCollins, Thomas F. Flynn III, and Laura Heeter. The next year,
Flynn was reelected and Cameron Hall was elected to a seat vacated
by Balaya, who did not seek reelection. Hall began his term on
July 1, 2014.
After Schrauth Forcucci’s term commenced in July 2013, and
throughout the following year, conflicts developed within the
Board,

and

ultimately

certain

Board

members

sought

Schrauth

Forcucci’s removal for various instances of alleged unprofessional
conduct. On April 30, 2014, the Board charged Schrauth Forcucci
with official misconduct.1 She was served with a “Statement of
Charges” (“the Charges”) on May 2, 2014. The Charges alleged that
Schrauth Forcucci’s “actions” while on the Board “[had] been
confrontational

and

interfered

with

the

Board’s

ability

1

to

New York Education Law § 1709(18) provides that a board of education has
the “power” and “duty”:
To remove any member of their board for official misconduct. But a
written copy of all charges made of such conduct shall be served
upon [the Board member] at least ten days before the time appointed
for a hearing of the same; and he shall be allowed a full and fair
opportunity to refute such charges before removal.

2

function,” and that despite advisement by the Board that her
“confrontational behavior was unacceptable,” Schrauth Forcucci
“continued her confrontational actions.” Doc. 23-3 at 2. More
specifically, the Charges alleged that Schrauth Forcucci “[b]erated
and verbally attacked” Board president David Yoviene (“Yoviene”),
Interim Superintendent Richard Jetter, and others; refused to
comply

with

Yoviene’s

instructions;

took

photographs

of

confidential personnel files and destroyed a document necessary to
facilitate review of a particular personnel file; and took other
actions described as generally “disrespectful and unprofessional.”
Id. at 2-6.2
A hearing officer, David Hoover, was appointed and a hearing
on the Charges commenced May 27, 2014. The hearing was continued
May 28, June 4, June 25, June 30, July 2, August 4, August 7, and
August 9, 2014. The first three of those hearing dates were
conducted in executive session, and not held open to the public. In
the meantime, on June 5, 2014, Schrauth Forcucci moved by order to
show cause filed with the New York State Supreme Court, Erie
County, for a preliminary injunction enjoining the Board from

2
On May 13, 2014, pursuant to New York Education Law § 310, Schrauth
Forcucci filed a notice of petition and verified petition with the New York State
Commissioner of Education (“the Commissioner”) seeking a determination that (1)
the Board lacked sufficient votes to approve a motion seeking her removal as a
Board member; and (2) the Statement of Charges was facially insufficient to
establish official misconduct. Schrauth Forcucci also petitioned the Commissioner
for a stay of any “further action regarding [her] removal by [the Board].” Doc.
23-4 at 19. The Commissioner denied petitioner’s request for a stay, and as of
the time of defendant’s motion for partial summary judgment, her further requests
remained pending.

3

conducting the removal hearing in executive session. Schrauth
Forcucci argued that under New York’s Open Meetings Law, the public
was entitled to attend the hearings. On June 5, 2014, Erie County
Supreme

Court

Justice

Diane

Y.

Devlin

issued

a

temporary

restraining order and ordered that the continuation of the hearing
originally scheduled for that date be stayed unless it was held
open to the public. After receiving the ruling, the Board canceled
hearings originally scheduled for June 5 and 6, 2014.
On June 11, 2013, Justice Devlin granted the preliminary
injunction, again ordering that any continuation of the hearing be
held in a meeting open to the public. On that date, the Board
canceled hearings originally scheduled for June 11 and 13, 2014,
and as noted above, the hearings ultimately continued beginning
June 25, 2014. That hearing and all remaining dates were held open
to the public pursuant to New York’s Open Meetings Law and Justice
Devlin’s order. On September 2, 2014, after the hearings had
concluded, hearing officer Hoover recommended to the Board that
Schrauth Forcucci be removed from her position as Board member. On
September 3, 2014, the Board removed Schrauth Forcucci as Board
member.
III. Procedural History
This action was commenced in New York State Supreme Court,
Erie County, on October 2, 2014. The Board removed the action to
this Court, on the basis of federal question jurisdiction, on

4

October 7, 2014. The complaint alleges five counts: (1) deprivation
of procedural due process as to Schrauth-Forcucci; (2) First
A m e n d m ent
(3)

r e t al i a t ion

disenfranchisement

as

against
to

both

S c h r a u t h -Forcucci;

plaintiffs;

(4)

right

to

attorney’s fees under 42 U.S.C. § 1988; and (5) right to attorney’s
fees under New York Public Officers Law § 18 and Education Law
§ 3811. On October 24, 2014, the Board filed its initial 12(b)(6)
motion to dismiss the complaint in its entirety.
By order dated October 23, 2014, this Court (Arcara, J.)3
denied plaintiffs’ motion (doc. 3) for a temporary restraining
order to enjoin the Board from filling the Board seat left vacated
by Schrauth Forcucci when the Board removed her. The Court also
ordered

the

Board

to

supplement

its

motion

to

dismiss

with

submissions sufficient for the Court to consider the question of
whether Schrauth Forcucci had a property interest in or statutory
entitlement
Fourteenth

to

the

Amendment

elected

Board

procedural

seat
due

sufficient

process

to

trigger

protection.

On

October 28, 2014, the Court further ordered the Board to supplement
its motion as to count three of the complaint so that the Court
could

evaluate

the

two

causes

of

action

simultaneously.

See

doc. 21.

3

This case was transferred to the undersigned, by the Honorable Richard
J. Arcara, by Order dated May 6, 2016.

5

On November 7, 2014, the Board filed its motion for partial
summary judgment as to counts one and three of the complaint.
Doc. 23. On November 14, 2014, plaintiffs filed their opposition to
that motion, along with a cross-motion for summary judgment on
those two claims. Doc. 25. Plaintiffs’ filing did not respond
substantively to the Board’s original motion to dismiss counts two,
four, and five of the complaint.
IV.

Discussion
A.

The Board’s Motion to Dismiss

Because the Board has since moved for summary judgment as to
plaintiffs’ claims under counts one and three of the complaint, the
Court will address the Board’s motion to dismiss only as it
pertains to counts two, four, and five of the complaint. The
function of a motion to dismiss pursuant to Rule 12(b)(6) is
“merely to assess the legal feasibility of the complaint, not to
assay the weight of the evidence which might be offered in support
thereof.” Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc.,
748

F.2d

omitted).
[Rule

774,
In

779
order

12(b)(6)],

a

(2d

Cir.

“[t]o

1984)

survive

complaint

must

(internal
a

motion

contain

quotation

to

dismiss

sufficient

marks
under

factual

matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
assessing a claim's plausibility, the district court must “assume

6

[the] veracity” of all well-pleaded factual allegations contained
in the complaint, Iqbal, 556 U.S. 679, and draw every reasonable
inference in favor of the plaintiff, Zinermon v. Burch, 494 U.S.
113, 118 (1990). “The plausibility standard is not akin to a
'probability requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S.
at 678.
Initially, the Court notes that plaintiffs have not responded
to the Board’s motion to dismiss, focusing instead on their crossmotion for summary judgment as to the first and third causes of
action. “If a complaint is sufficient to state a claim on which
relief can be granted, the plaintiff's failure to respond to a Rule
12(b)(6) motion does not warrant dismissal.” McCall v. Pataki, 232
F.3d 321, 322 (2d Cir. 2000). Plaintiffs’ failure to respond to the
motion notwithstanding, then, the court must determine whether,
“accept[ing] the allegations contained in the complaint as true,
and

draw[ing]

non-movant,”

all

reasonable

plaintiffs

have

inferences

stated

a

in

facially

favor
valid

of

the

claim.

Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). For the
reasons discussed below, the Board’s motion to dismiss is granted
as to counts two, four, and five of the complaint.
1.

Count Two: First Amendment Retaliation

“When a public employee brings retaliation claims based on the
First Amendment, as is the case here, the plaintiff must prove

7

that: ‘(1) [she] engaged in constitutionally protected speech
because [she] spoke as [a] citizen[] on a matter of public concern;
(2) [she] suffered an adverse employment action; and (3) the speech
was a motivating factor in the adverse employment decision.’” Hadid
v. City of New York, 2015 WL 7734098, *9 (E.D.N.Y. Nov. 30, 2015),
reconsideration denied, 2016 WL 1622888 (E.D.N.Y. Apr. 22, 2016).
The Board contends that the complaint fails to allege the requisite
facts to establish the second or third element.
The

complaint

alleges

that

Schrauth

Forcucci

engaged

in

protected activity under the First Amendment when she “[brought]
action to have [her disciplinary] hearings open to the public and
the media.” Doc. 1-2 at ¶ 131. It goes on to allege that after she
took such action and obtained an injunction from the New York State
Supreme Court, the Board retaliated against her by “cancelling
hearing

dates,

refusing

to

schedule

hearing

dates,

publicly

denouncing her for ‘derailing’ these hearings, and blaming her for
the legal costs associate with these hearings.” Id. at ¶ 133.
According to the complaint, the Board’s actions in delaying the
hearings “[were] intended to silence and punish a minority board
member [Schrauth Forcucci] for exercising her First Amendment
privileges.” Id. at ¶ 136.
As to the second element, “[o]nly retaliatory conduct that
would deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights constitutes an

8

adverse action for a claim of retaliation.” Davis v. Goord, 320
F.3d 346, 353 (2d Cir. 2003) (citing Dawes v. Walker, 239 F.3d 489,
493 (2d Cir. 2001)). The complaint alleges that after the June 5
and 6,

2014

hearing dates

were

cancelled

(the

first alleged

“adverse” action), Schrauth Forcucci continued her action in state
court, in an eventually successful effort to obtain a preliminary
injunction in that court. Thus, according to her own allegations,
Schrauth

Forcucci

was

not

actually

“deter[red]

.

.

.

from

exercising . . . her constitutional rights.” See Davis, 320 F.3d at
353. Consequently, Schrauth Forcucci fails to plausibly allege that
cancellation

of

the

hearing

dates

was

an

adverse

action

for

purposes of her First Amendment retaliation claim.4 See Gill v.
Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (noting that, “at
least in that limited public official context,” “a plaintiff must
prove

that

(1)

she

has

an

interest

protected

by

the

First

Amendment; (2) defendants’ actions were motivated or substantially
caused by his exercise of that right; and (3) defendants’ actions
effectively chilled the exercise of her First Amendment right.”)

4

Plaintiffs’s allegations that the Board “denounc[ed]” Schrauth Forcucci,
or “blame[d]” her for circumstances associated with the hearings, also do not
rise to the level of adverse action. These statements “amount to no more than
‘[i]nsulting or disrespectful comments,’ a ‘hostile manner,’ or ‘sarcastic
comments,’ which, [the Second Circuit has] held, ‘without more’ are ‘simply de
minimis’ acts that fall ‘outside the ambit of constitutional protection[.]’”
Toliver v. City of New York, 530 F. App'x 90, 92 (2d Cir. 2013); see also Carl
v. Griffin, 2011 WL 723553, *5 (S.D.N.Y. Mar. 2, 2011) (“[V]erbal harassment, or
even threats, are generally held not to rise to the level of adverse action that
will support a First Amendment retaliation claim.” (internal quotation marks and
citations omitted)); Bartley v. Collins, 2006 WL 1289256, *6 (S.D.N.Y. May 10,
2006) (“[V]erbal threats such as ‘we going to get you, you better drop the suit,’
do not rise to the level of adverse action.”).

9

(emphasis added); see also Dickson v. McGrady, 2010 WL 1330082, *6
(M.D. Pa. Mar. 30, 2010) (“Plaintiff thus demonstrates that he was
not deterred from exercising his First Amendment rights, but rather
continued to do so.”). For these reasons, the complaint fails to
allege adverse action sufficient to meet the second element of a
First Amendment retaliation claim.
Even assuming the complaint meets the first two elements, it
fails to meet the third, which requires causation. The complaint
does not plausibly allege a causal connection between Schrauth
Forcucci’s

alleged

protected

speech

and

the

adverse

actions

alleged. The complaint itself reveals that the hearings scheduled
for June 5 and 6, 2014, were cancelled on June 5, 2014, the day
that

Justice

Devlin

issued

a

temporary

restraining

order

prohibiting the Board from continuing the removal hearings unless
they were open to the public. See doc. 1-2 at ¶ 95 (“After
Justice Devlin issued the TRO, the Board cancelled the June 5 and
6

hearing

dates.”).

The

June

11

and

13,

2014

meetings

were

cancelled on June 11, 2014, immediately following Justice Devlin’s
issuance of a preliminary injunction prohibiting the Board from
continuing the hearings unless they were open. See id. at ¶ 97
(“After Justice Devlin issued a preliminary injunction on June 11,
2014, the Board cancelled the June 11 and June 13 hearing dates.”).
It thus appears that Justice Devlin’s orders, not Schrauth
Forcucci’s

alleged

protected

speech,

10

were

the

impetus

for

cancellation of the four June hearing dates.5 Another plausible
cause is pointed out by plaintiffs in their complaint: they allege
that the Board delayed the hearings “so that Hall could replace
Balaya as one of [the Board’s] decision makers.” Doc. 1-2 at ¶ 134.
As discussed above, Hall was elected to the seat vacated by Balaya
when she did not seek reelection. Hall took his place on the Board
on

July

1,

2014,

and

eventually

voted

in

favor

of

Schrauth

Forcucci’s removal.
Plaintiffs’ conclusory allegation that the Board’s actions in
delaying the hearings “[were] intended to silence and punish a
minority board member [Schrauth Forcucci] for exercising her First
Amendment privileges,” doc. 1-2 at ¶ 136, is unsupported by facts
tending to plausibly allege such a causal connection. See Twombly,
550 U.S. at 555 (2007) (“[A] plaintiff’s obligation . . . requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must
be

enough

to

raise

a

right

to

relief

above

the

speculative

level.”). Therefore, even if the complaint adequately pled the
5

The Board’s motion includes transcripts of proceedings before Justice
Devlin and her order issuing the preliminary injunction. See doc. 20-2, 20-3.
Although decision on a motion to dismiss is generally limited to a review of the
pleadings, the Court is free to take judicial notice of matters of record in
prior litigation between the same parties. See Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 157 (1969) (taking judicial notice of the record in
prior litigation between the same parties); Staehr v. Hartford Fin. Servs. Group,
Inc., 547 F.3d 406, 426 (2d Cir. 2008) (“[M]atters judicially noticed by the
District Court are not considered matters outside the pleadings.”). Justice
Devlin specifically stated, in granting the preliminary injunction, that there
was “absolutely no showing that the school district [would] suffer any
irreparable damage in either conducting the meetings in public or postponing the
hearings until this litigation has been completed.” Doc. 20-3 at 5 (emphasis
added).

11

first two elements, it fails to plead the third. Accordingly,
because it is not plausibly alleged, Schrauth Forcucci’s claim of
First Amendment retaliation is dismissed.
2.

Counts Four and Five: Attorney’s Fees

Plaintiffs’ fourth and fifth causes of action are requests for
attorney’s fees pursuant to 42 U.S.C. § 1988, New York Public
Officers Law § 18, and New York Education Law § 3811. These
requests for relief are not substantive claims, and are therefore
dismissed. See, e.g., Jaffe v. Capital One Bank, 2010 WL 691639,
*10 (S.D.N.Y. Mar. 1, 2010) (dismissing claims for attorney’s fees
because they were “not causes of action” but rather a “potential
forms of relief”).
B.

The Board’s Motion for Summary Judgment

Summary judgment is appropriate where the court determines
“there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” See Fed. R.
Civ. P. 56(c). The court must view all facts in the light most
favorable to the nonmoving party, but “only if there is a ‘genuine’
dispute as to those facts.” See Scott v. Harris, 550 U.S. 372, 380
(2007). A genuine issue of material fact exists if “the evidence is
such

that

a

reasonable

jury

could

return

a

verdict

for

the

nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The nonmoving party, however, may not rely on
“[c]onclusory allegations, conjecture, and speculation,” Kerzer v.

12

Kingly

Mfg.,

156

F.3d

396,

400

(2d

Cir.

1998),

but

must

affirmatively “set out specific facts showing a genuine issue for
trial.” See Fed. R. Civ. P. 56(e). To meet this

burden, “a

plaintiff must come forward with evidence to allow a reasonable
jury to find in his favor” on each of the elements of his prima
facie case. See Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir.
2001).
As noted above, this Court (Arcara, J.) previously ordered the
parties to come forward with evidence regarding the issue of
whether

Schrauth

Forcucci

had

a

constitutionally-recognized

property interest or statutory entitlement to her position as an
elected School Board member. Subsequently, both parties submitted
motions for partial summary judgment on Schrauth Forcucci’s due
process claim, which is set forth at count one of the complaint,
and plaintiffs’ related disenfranchisement claim, which is set
forth at count three.
1.

Count One: Denial of Procedural Due Process

Schrauth Forcucci contends that she was denied procedural due
process, guaranteed to her by the Fifth and Fourteenth Amendments,
when the Board removed her from her position as Board member.
Schrauth Forcucci argues that a number of procedural defects
occurred throughout the hearing process which ultimately deprived
her of her constitutional rights. To prevail on a claim under
42 U.S.C. § 1983, a plaintiff must allege (1) “that some person has

13

deprived him of a federal right,” and (2) “that the person who has
deprived him of that right acted under color of state . . . law.”
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
a.

Property Interest

Plaintiff first argues that the Board violated her due process
rights by depriving her of a property interest in her elected
position on the Board. In Velez v. Levy, 401 F.3d 75, 85 (2d Cir.
2005), the Second Circuit addressed a factually similar due process
claim in the school board context. The Court noted that “[i]n order
to establish a due process violation of this sort, plaintiff must
show

that

state

action

deprived

her

of

a

property

interest

protected by the Fourteenth Amendment.” Velez v. Levy, 401 F.3d 75,
85 (2d Cir. 2005). “[O]nly where a plaintiff can demonstrate that
state

law

confers

“a

legitimate

claim

of

entitlement”

to

a

particular position will a property interest in that position
arise.” Id. In Velez, the Second Circuit determined that the
plaintiff “lack[ed] a constitutionally cognizable property interest
in her elected [school board] office.” Id. at 86 (citing Taylor and
Marshall v. Beckham, 178 U.S. 548 (1900); Snowden v. Hughes, 321
U.S. 1 (1944)).
The same reasoning applies here, and the Court therefore finds
that Schrauth Forcucci had no constitutionally-protected property
interest in her elected position on the Board. See also, e.g.,
LaPointe v. Winchester Bd. of Ed., 366 F. App'x 256, 257 (2d Cir.

14

2010) (“[E]lected officials lack such a protected property interest
in their elected offices because ‘public offices are mere agencies
or trusts, . . . not property.’”) (quoting Velez, 401 F.3d at 86;
Taylor,

178

U.S.

at

577)

(citing

Snowden,

321

U.S.

at

7

(reaffirming the holding of Taylor)).
Plaintiffs’ attempts to distinguish Velez are not persuasive.
Plaintiffs contend that the Velez Court “concluded that Velez
lacked [a property interest]” because it “found the ‘statutory
framework’ for removing a . . . school board member allowed the
Chancellor ‘unilateral’ authority to remove the plaintiff without
a hearing and without an opportunity to refute the charges.” Doc.
25-34 at 14. This argument misstates the holding of Velez. In
Velez, like in this case, the plaintiff argued that she had a
property interest in her position on the school board as a result
of statutory framework providing for removal, for cause, of a
school board member in New York City. Although the Velez Court
found that under such a statutory framework, “[i]t might seem . .
. that Velez’s allegations would be adequate to support a property
interest claim,” the Court nevertheless explicitly rejected the
argument based on the fact that the position to which Velez claimed
entitlement

was

her

elected

position.

Velez, 401

F.3d

at

86

(emphasis added). As the Court explained, under relevant Supreme
Court precedent, “elected offices cannot constitute ‘property’
within the meaning of the Fourteenth Amendment.” Id. (quoting

15

Snowden, 321 U.S. at 7). Thus, plaintiffs’ argument, which is
nearly identical to the argument advanced by the plaintiff in
Velez, fails.
b.

Liberty Interest

Schrauth Forcucci’s brief in support of her motion for partial
summary judgment argues that while she may not have had a property
interest, she suffered the loss of a liberty interest without
sufficient process. “To state a valid claim for such an injury,
[Schrauth Forcucci’s] complaint must assert (1) that she possessed
a cognizable liberty interest, and (2) that the defendants deprived
her of that same liberty without providing process adequate to
justify their actions.” Velez, 401 F.3d at 87. In Velez, the Second
Circuit noted that such a “stigma-plus” claim “requires a plaintiff
to allege (1) the utterance of a statement about her that is
injurious to her reputation, ‘that is capable of being proved
false, and that he or she claims is false,’ and (2) ‘some tangible
and

material

state-imposed

burden

.

.

.

in

addition

to

the

stigmatizing statement.’” Id. (quoting Doe v. Dep't of Pub. Safety
ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other
grounds, Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1
(2003)). The Second Circuit has cautioned that, as defamation is
generally
provides

a matter
a

remedy

of

state

only

in

tort law,

“limited

16

a

“stigma-plus”

circumstances

.

.

claim
.

for

government defamation under federal constitutional law.” Sadallah
v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (emphasis added).
The Board contends that Schrauth Forcucci’s complaint fails to
make out a stigma-plus claim, and merely alleges denial of her
alleged property interest. The Board argues that Schrauth Forcucci
should not now be allowed to add this new claim, where it was not
pled in her complaint. Schrauth Forcucci argues that her complaint
does

make

out

a

stigma-plus

claim

by

alleging

that

various

injurious statements made by Board president Yoviene, community
member Daniel Chiacchia, and former Superintendent Jetter,6 as well
as the filing of formal charges alleging official misconduct,
amounted to enough to allege the first, “stigma,” prong of a
stigma-plus claim. See doc. 33 at 5. She contends that the “plus”
prong is established by allegations that she was, in fact, removed
from the Board.
The

public

statements

made

within

the

Board’s

official

Charges, which allege various instances of specific unprofessional
conduct by Schrauth Forcucci, arguably qualify as defamatory under
relevant precedent.7 See, e.g., Huntley v. Community Sch. Bd., 543

6
As Chiacchia and Jetter are neither members of the Board nor named
defendants in this action, the Court has reviewed the alleged “injurious”
statements made by members of the defendant Board which could rise to the level
required for a stigma-plus claim.
7
Statements similar to the allegations contained in the Charges were made
at a public meeting held October 2, 2013, at which Yoviene stated, among other
things, that Schrauth Forcucci was disrespectful and abusive to staff and
improperly destroyed a document belonging in an employee’s personnel file. Doc.
25-24 at 2. The Court notes, however, that plaintiffs do not cite the official
Charges as the relevant defamatory statements. See doc. 25-34 at 13 (citing,

17

F.2d 979, 985 (2d Cir. 1976), cert. denied, 430 U.S. 929 (1977)
(describing statement of charges against school principal, and
finding that allegations contained therein implicated a liberty
interest because they “[went] to the very heart of Huntley’s
professional competence” and “drastically impaired” his chance of
receiving another supervisory position). Allegations of this type,
however, have been held sufficiently injurious “only when they
denigrate the employee’s competence as a professional and impugn
the employee’s professional reputation in such a fashion as to
effectively

put

a

significant

roadblock

in

that

employee’s

continued ability to practice his or her profession.”8 Donato v.
Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630–31
(2d Cir. 1996). The Court need not decide the question of whether

instead, doc. 25-33 at ¶¶ 14 [referencing doc. 25-24], 17, 18, 26-29, 38
[highlighting Yoviene’s public and private statements regarding Schrauth
Forcucci]).
8

On the other hand, public statements as to matters of opinion (such as
Yoviene’s statements that plaintiff was “responsible for much of the dysfunction
of the board,” doc. 1-2 at ¶ 44, had “‘been a headache for [the Board],” id. at
¶ 45, and was not capable of changing her behavior, id. at ¶ 110) are statements
of opinion not falling within the ambit of a stigma-plus claim. See, e.g., Sharpe
v. City of New York, 2013 WL 2356063, *6 (E.D.N.Y. May 29, 2013), aff'd, 560 F.
App'x 78 (2d Cir. 2014) (finding statements to the effect that plaintiff had
“profoundly flawed judgment” “consisted of [defendant’s] personal assessment of
plaintiff’s actions rather than a factual representation[, and] [a]ccordingly,
it [could] not form the basis of a ‘stigma-plus’ claim”) (emphasis added); Prince
v. County of Nassau, 837 F. Supp. 2d 71, 98 (E.D.N.Y. 2011), aff'd, 563 F. App'x
13 (2d Cir. 2014) (dismissing stigma-plus claim, finding that “plaintiff has not
pointed to any record evidence of statements made by the defendants that were
‘capable of being proved true or false,’” and this is fatal to any stigma plus
claim”). Likewise, statements made in private (such as such as plaintiffs’
allegation that Yoviene privately told Balaya that Schrauth Forcucci’s “camp” may
have been responsible for damage done to Jetter’s vehicle, see doc. 1-2 at ¶¶ 6061) do not qualify. See Velez, 401 F.3d at 87 (“The defamatory statement must be
sufficiently public to create or threaten a stigma; hence, a statement made only
to the plaintiff, and only in private, ordinarily does not implicate a liberty
interest.”).

18

the allegations in the Charges so denigrated Schrauth Forcucci’s
professional reputation, and rather assumes, for purposes of this
analysis,

that

the

complaint

alleges

sufficient

defamatory

statements capable of being proved false.
Even

assuming

that

the

statements

made

against

Schrauth

Forcucci were sufficient, “central to a successful stigma-plus
claim is proof that the alleged disparaging statement is false.”
Smith v. New York City Dep't of Educ., 808 F. Supp. 2d 569, 582–83
(S.D.N.Y.

2011)

(emphasis

added).

Thus,

in

Smith,

the

court

reasoned:
Here, the statements that appear to be at issue concern
Smith’s threats against Hearing Officer Tillem and
Smith's lack of professionalism. Those very statements
were found to be true in the First and Second Hearings
and those findings were upheld in Article 75 proceedings.
Accordingly, we find that Smith cannot successfully
maintain a stigma-plus claim in this action.
Id. (emphasis added) (citing Vega v. Lantz, 596 F.3d 77, 82 (2d
Cir. 2010) (holding that plaintiff had “not established a threshold
requirement – the existence of a reputation-tarnishing statement
that is false”) (emphasis in original); Quinn v. Syracuse Model
Neighborhood

Corp.,

613

F.2d

438,

446

(2d

Cir.

1980)

(“[T]o

constitute deprivation of a liberty interest, the stigmatizing
information must be both false . . . and made public . . . by the
offending governmental entity.”)).
Here, as in Smith, the Board specifically upheld the hearing
officer’s findings, which found nearly every allegation contained

19

within the Charges to be true. More importantly, however, the
complaint does not even allege that the statements were, in fact,
false. Thus, the Court is persuaded by the Board’s argument that
the stigma-plus claim was not in fact pled by the complaint in the
first place. See, e.g., Lyman v. CSX Transp., Inc., 364 F. App'x
699, 701 (2d Cir. 2010) (affirming district court’s dismissal of
claim where it was raised for the first time in opposition to
summary judgment). A close examination of the complaint reveals
that plaintiffs do not contest the veracity of the statements, but
rather allege that even if the statements were true, they would be
insufficient to amount to “official misconduct” for purposes of the
Board’s removal hearing. See doc. 1-2 at ¶ 49 (alleging that Balaya
told

fellow

Schrauth

Board

Forcucci

members
would

that

not

“the

conduct

constitute

alleged

official

against

misconduct”)

(emphasis added); ¶ 63 (alleging that “Schrauth Forcucci filed and
served an appeal with the Commissioner to challenge the sufficiency
of the Charges”) (emphasis added); ¶ 89 (alleging “Balaya again
cautioned Board members that the conduct alleged against Schrauth
Forcucci did not arise to official misconduct”) (emphasis added).
Accordingly,

Schrauth

Forcucci’s

first

count

alleging

procedural due process focuses solely on the following four areas
of alleged deprivation: (1) the Board was not “given the correct
standard of review . . . to evaluate Schrauth Forcucci’s conduct,”
doc. 1-2 at ¶ 123; (2) “Schrauth Forcucci was given no prior notice

20

as to what conduct would cause her to be removed for official
misconduct,” id. at ¶ 124; (3) “a final determination was not
rendered by

a

fair,

impartial

and

neutral panel

of

decision

makers,” id. at ¶ 125; and (4) “the hearing officer had no
statutory or regulatory authority to make recommendations to the
Board on its final determination,” id. at ¶ 126. Schrauth Forcucci
alleges that “[e]ach of these four reasons individually would
deprive Schrauth Forcucci of due process and collectively provides
the

Court

with

overwhelming

evidence

of

a

constitutionally

defective determination.” Id. at 127. The complaint thus does not
allege that Schrauth Forcucci was deprived of due process due to
stigmatizing statements plus removal from the Board. Reading the
complaint in the light most favorable to plaintiffs, it does not
make out a prima facie stigma-plus claim for deprivation of a
liberty interest.9 Because Schrauth Forcucci has failed to allege
or prove deprivation of a property or liberty interest, the due
process claim set forth at count one of the complaint is dismissed.
2.

Count Three: Disenfranchisement

Plaintiffs’ third cause of action (and the only substantive
cause of action pled on behalf of both plaintiffs) is based on
9

Plaintiffs’ subsequent submissions do not alter the analysis. Although
Schrauth Forcucci states in a declaration that she “den[ies] being responsible
for the Board’s dysfunction or causing any ‘damage’ to the District,” doc. 25-1
at ¶ 13, she does not specifically deny the allegations in the Charges, or
demonstrate how they were false. Her attorney’s affirmation makes clear that the
challenge to her removal hearing focused not on the falsity of the charges, but
rather on the application of the proper standard for determining whether such
conduct, if true, would constitute “official misconduct.” See doc. 25-4 at ¶ 21,
26, 27.

21

Article I, § 1 of the New York State Constitution. N.Y. Const. art.
I, § 1 (“No member of this state shall be disfranchised, or
deprived of any of the rights or privileges secured to any citizen
thereof . . .”). The cause of action, as pled, relies on the
underlying conclusion that Schrauth Forcucci’s removal was rendered
void by a denial of procedural due process. The complaint alleges
that because her removal was void, the Board’s filling of a vacancy
caused by her removal “disenfranchise[d] those voters who elected
Schrauth Forcucci to the Board.” Doc. 1-2 at ¶ 146.
Plaintiffs have failed to establish that Schrauth Forcucci’s
removal from the Board was in fact void by some denial of due
process,

and

they

have

consequently

failed

to

establish

the

underlying factual allegations of their disenfranchisement claim.
See generally Kirch v. Liberty Media Corp., 449 F.3d 388, 401
(2d

Cir.

2006)

(failure

to

state

cause

of

action

for

torts

underlying conspiracy allegations led to dismissal of claim for
civil conspiracy); Stein v. Doukas, 98 A.D.3d 1024, 1026 (2d Dep’t
2012) (“Even if the second and fourth causes of action are deemed
to be referable to the causes of action alleging fraud, given the
inadequacy of the underlying causes of action alleging fraud, the
causes of action seeking punitive damages must be dismissed”).
Plaintiffs’ brief supporting their motion for partial summary
judgment argues that the disenfranchisement claim actually derives
from the procedural due process claim, and contends that the

22

“entitlement” of which plaintiffs were deprived, for due process
purposes, was their right to vote under the state constitution. A
cause of action under § 1983, however, cannot be grounded in a
state constitutional claim. See Reed v. Medford Fire Dep't, Inc.,
806 F. Supp. 2d 594, 607 (E.D.N.Y. 2011) (“[A] plaintiff cannot
maintain a cause of action under Section 1983 when the alleged
deprivation of due process is based on the violation of state
law.”) (citing Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985)
(“[A] violation of state law is not cognizable under § 1983.”)).
Accordingly, the third cause of action alleging disenfranchisement
is dismissed.
V. Conclusion
For the foregoing reasons, defendant’s motion to dismiss
(doc. 20) is granted to the extent that counts two, four, and five
are dismissed for failure to state a claim upon which relief can be
granted. Defendant’s motion for partial summary judgment as to
counts one and three (doc. 23) is granted. Plaintiffs’ cross-motion
for partial summary judgment (doc. 25) is denied. The complaint is
dismissed in its entirety with prejudice. The Clerk of the Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

August 5, 2016
Rochester, New York.

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