Piechowicz v. Lancaster Central School District et al

Filing 24

DECISION AND ORDER granting in part and denying in part 4 motion to dismiss; adopting in part 13 report and recommendations. The plaintiff may file an amended complaint against defendants Peter Kruszynski and the Lancaster Central School District on or before January 6, 2020. The plaintiffs claims against the remaining defendants, as well as her claims for injunctive relief, compensatory damages for deprivation of companionship and loss of consortium, and punitive damages under the ADA and the Rehabilitation Act, are dismissed without leave to amend. Signed by Hon. Lawrence J. Vilardo on 12/2/2019. (RFI)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DENISE PIECHOWICZ, individually and
as Administratrix of the Estate of J.P.,
deceased,
Plaintiff,

17-CV-845
DECISION AND ORDER

v.
LANCASTER CENTRAL SCHOOL
DISTRICT, et al.,
Defendants.

This case concerns the tragic suicide of J.P., a special-education student at
Lancaster Central Middle School. The plaintiff, Denise Piechowicz, is J.P.’s mother and
the adminstratrix of his estate. On August 3, 2017, Piechowicz filed a complaint in New
York State Supreme Court, Erie County, asserting claims under 42 U.S.C. § 1983, the
Americans with Disabilities Act (“ADA”), the Rehabilitation Act, New York Civil Rights
Law § 79-n, New York Estate Powers and Trusts Law § 5-4.1, the New York
Constitution, and New York common law. Docket Item 1-1.
On August 28, 2017, the defendants removed the action to this Court. Docket
Item 1. That same day, the defendants moved to dismiss for failure to state a claim on
which relief can be granted. Docket Item 4. On November 13, 2017, the plaintiff
responded to the defendants’ motion to dismiss, Docket Item 11, and on November 29,
2017, the defendants replied, Docket Item 12.
In the meantime, on September 8, 2017, this Court referred this case to United
States Magistrate Judge Leslie G. Foschio for all proceedings under 28 U.S.C.

§ 636(b)(1)(A) and (B). Docket Item 5. On March 21, 2018, Judge Foschio issued a
Report and Recommendation (“R&R”) finding that the defendants’ motion should be
granted and that the complaint should be dismissed without allowing the plaintiff leave
to amend. Docket Item 13.
On April 10, 2018, the plaintiff objected to the R&R, arguing that the state
pleading standard should apply to a removed action and that even if the federal
standard applied, her complaint met the federal standard. Docket Item 16. On April 30,
2018, the defendants responded to the objection, Docket Item 19, and on May 14, 2018,
the plaintiff replied, Docket Item 20. This Court heard oral argument on the plaintiff’s
objection on November 13, 2019, and reserved decision. Docket Item 23.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court
must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3).
This Court has carefully reviewed the thorough R&R, the record in this case, the
objection and response, and the pleadings and materials submitted by the parties.
Based on that de novo review, this Court accepts in part and modifies in part Judge
Foschio’s findings.
As explained in more detail below, this Court agrees with Judge Foschio that the
federal pleading standard applies. This Court also agrees that the claims against the
following defendants should be dismissed without leave to amend: the Lancaster Board
of Education (“the Board”); Board President Kenneth Graber, Esq.; Board Vice

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President Patrick Uhteg; Board members Wendy Buchert, William Gallagher, Mary
MacKay, Kimberly Nowak, and Michael Sage; School District Superintendent Michael
Vallely, Ph.D.; School District Assistant Superintendent for Curriculum, Instruction &
Pupil Services Marie Perini, Ed.D.; School District Director of Special Education John
Armstrong; and School District Director of Secondary Education Andrew Kufel, Ph.D.
But this Court disagrees with Judge Foschio’s recommendation to deny the plaintiff
leave to amend her complaint as to defendants Principal Peter Kruszynski and the
Lancaster Central School District (“the District”).
DISCUSSION
The Court assumes the reader’s familiarity with the facts alleged in the complaint,
see Docket Item 1-1, and Judge Foschio’s analysis in the R&R, see Docket Item 13.
I.

PLEADING STANDARD
This Court accepts and adopts Judge Foschio’s finding that the federal pleading

standard applies. Id. at 6-9. The plaintiff acknowledges that in arguing that the state
pleading standard applies, she “is asking the Court to swim against the tide” as “[t]wo
sister circuits (and some district courts) have ruled that Iqbal’s plausibility analysis
applies on removal.” Docket Item 16 at 7 n.1; see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“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.” (citation
omitted)). Moreover, a plain reading of Rule 81 dictates that the federal pleading
standard applies to a motion to dismiss filed after an action has been removed. See
Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action after it is removed from a

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state court.” (emphasis added)). In fact, by providing that “[a]fter removal, repleading is
unnecessary unless the court orders it,” Fed. R. Civ. P. 81(c)(2) (emphasis added), Rule
81 implicitly acknowledges that there are circumstances in which a state court complaint
must be repleaded in federal court—for example, when a defendant has successfully
argued in a motion to dismiss that the complaint does not meet federal pleading
requirements.
II.

50-H HEARING TRANSCRIPT
This Court also accepts and adopts Judge Foschio’s finding that this Court

cannot consider the contents of the plaintiff’s 50-h hearing transcript in evaluating her
complaint. Docket Item 13 at 11-14. As Judge Foschio explained, the plaintiff does not
merely ask the Court to take notice of the transcript, she “relies on the veracity of her
statements in the 50-h hearing.” Id. at 14. That is not permitted in opposing a motion to
dismiss. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (explaining that “[i]f
the court takes judicial notice [of documents outside the complaint], it does so in order
‘to determine what statements [they] contained’—but ‘. . . not for the truth of the matters
asserted’” (emphasis in original) (quoting Kramer v. Time Warner Inc., 937 F.2d 767,
774 (2d Cir. 1991))). 1
III.

LANCASTER BOARD OF EDUCATION AND INDIVIDUAL DEFENDANTS
This Court agrees with Judge Foschio that the complaint fails to state a claim

against the Board and the individual defendants—with the exception of Principal

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Of course, the plaintiff may incorporate the facts she testified to at the 50-h
hearing into her amended complaint.
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Kruszynski—and that amendment would be futile with respect to those defendants. The
plaintiff effectively conceded that her complaint fails to state a claim against those
defendants under the federal standard. See Docket Item 16 at 3 (“Even if Iqbal analysis
is appropriate, plaintiff’s complaint alleges plausible facts to satisfy Rule 8(a)(2) and
states a civil rights claim against Principal Kruszynski, and federal statutory causes of
action against the school district, as well as state law claims against Principal
Kruszynski and the school district.” (emphasis added)). Nor is there is any indication
that the plaintiff would be able to meet the federal standard with respect to the Board
and the other individual defendants if given leave to amend. Indeed, at oral argument,
the plaintiff’s counsel acknowledged that the plaintiff did not have additional facts to
allege against those defendants.
Accordingly, this Court accepts and adopts Judge Foschio’s recommendation to
dismiss the claims against the Board and the individual defendants—except Principal
Kruszynski—without leave to amend. See TechnoMarine SA v. Giftports, Inc., 758 F.3d
493, 505 (2d Cir. 2014) (“A plaintiff need not be given leave to amend if [she] fails to
specify either to the district court or to the court of appeals how amendment would cure
the pleading deficiencies in [her] complaint.”).
IV.

SECTION 1983 CLAIMS
This Court also agrees with Judge Foschio’s analysis regarding municipal

liability, see Docket Item 13 at 17-20, and the plaintiff’s equal protection claim, see id. at
28-30. This Court modifies Judge Foschio’s findings, however, with respect to the
plaintiff’s substantive and procedural due process claims, as explained in more detail
below. Moreover, this Court finds that it would be fundamentally unfair to dismiss the
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plaintiff’s claims against the District and Principal Kruszynski—which were pleaded
under the state standard—without giving the plaintiff an opportunity to amend her
complaint. 2
Regarding the plaintiff’s substantive due process claim, Judge Foschio found that
“even assuming that the plaintiff could demonstrate she fell into the state-created
danger exception,” she did not adequately allege “extreme and outrageous conduct
shocking contemporary conscience.” Id. at 25. This Court disagrees. The complaint
alleges that on the day that J.P.—a student with learning disabilities, including Auditory
Processing Disorder—committed suicide, Principal Kruszynski “improperly and
negligently interrogated [him].” Docket Item 1-1 ¶¶ 23-24, 31. Specifically, “Kruszynski
made false statements, harassed, bullied, and intimidated J.P.[,] and secured
participation of a police officer with the sole purpose of improperly intimidating and
harassing J.P.” Id. ¶ 31. Accepting these allegations as true, this Court finds that a
reasonable jury could deem the principal’s actions to be extreme and outrageous
conduct shocking contemporary conscience. 3

2

As explained above, the Court agrees with Judge Foschio that amendment
would be futile as to the remaining defendants.
3

Judge Foschio relied heavily on the Second Circuit’s analysis in Spring v.
Allegany-Limestone Central School District, 655 F.Appx. 25 (2d. Cir. July 14, 2016),
because of the “strong similarities between claims advanced” here and in that case.
Docket Item 13 at 9. Although it is true that both cases involve claims against schools
for the suicide of a special-education student, Spring did not involve allegations of direct
affirmative harassment and bullying by a school administrator as this case does.
Instead, it involved the school’s response—or, in many instances, lack of response—to
harassment and bullying by fellow students. See Spring v. Allegany-Limestone Cent.
Sch. Dist., 138 F. Supp. 3d 282, 287-89 (W.D.N.Y. 2015).
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Whether these allegations plausibly satisfy the state-created danger exception is
a closer question. Although this Court does not agree with Judge Foschio that “the
allegations against Principal Kruszynski are too vague and sparse to state a claim for a
due process violation based on the state created danger theory,” Docket Item 13 at 24
(emphasis added), this Court questions whether the complaint plausibly alleges that
Kruszynski knew or should have known that he was putting J.P. at risk of suicide. Cf.
Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1263-64 (10th Cir. 1998)
(denying summary judgment because of possibility that school created a dangerous
condition by suspending the plaintiff who had previously threatened suicide and leaving
him at his home alone where he had access to firearms). Because the plaintiff may
amend her complaint, however, the Court need not definitively decide at this juncture
whether the facts in the current complaint are enough to demonstrate the principal’s
knowledge that he was creating a danger.
Regarding the plaintiff’s procedural due process claim, Judge Foschio found that
there was no violation because “an Article 78 proceeding has been held sufficient to
review both a school official’s justification for searching a student on premises, as well
as any resulting discipline.” Docket Item 13 at 27. In support of this conclusion, Judge
Foschio relied on J.F. v. Carmel Cent. Sch. Dist., 168 F. Supp. 3d 609, 618-20
(S.D.N.Y. 2016) (granting the defendants’ motion for summary judgment on the
plaintiffs’ procedural due process claims). This Court disagrees that J.F. supports
dismissal at this stage. First, the court in J.F. acknowledged that it was “unaware of any
cases concerning the availability of an Article 78 proceeding to review a school official’s
justification for searching a student on school premises.” Id. at 620. Second, J.F. was

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decided on summary judgment, not a motion to dismiss, and did not involve a student
who had committed suicide. But this Court agrees with Judge Foschio that more detail
is needed for the plaintiff’s procedural due process claim to meet the federal pleading
standard. So the plaintiff may amend her complaint in this regard as well.
V.

ADA AND REHABILITATION ACT CLAIMS
This Court largely agrees with Judge Foschio’s analysis of the plaintiff’s ADA and

Rehabilitation Act claims, Docket Item 13 at 30-34, except that this Court finds that the
plaintiff should be allowed to replead these claims.
VI.

NEW YORK STATE LAW CLAIMS
Because the Court grants the plaintiff leave to amend, it declines to address the

viability of plaintiff’s state-law claims against Principal Kruszynski and the District as
currently pleaded. If the plaintiff amends her complaint and the defendant again moves
to dismiss, this Court will address the state-law claims at that time.
VII.

DAMAGES
The Court adopts Judge Foschio’s recommendation that the plaintiff’s claims for

injunctive relief, damages for deprivation of companionship and loss of consortium, and
punitive damages under the ADA and the Rehabilitation Act be dismissed. Docket Item
13 at 48-49. The Court, however, declines to adopt Judge Foschio’s recommendation
regarding the plaintiff’s claim for punitive damages against defendant Kruszynski. As
with the plaintiff’s state law claims, the Court will revisit this issue if the plaintiff amends
her complaint and the defendant files a subsequent motion to dismiss.

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CONCLUSION
For the reasons stated above and in the portions of the R&R that this Court has
adopted, the defendants’ motion to dismiss, Docket Item 4, is GRANTED IN PART AND
DENIED IN PART. The plaintiff may file an amended complaint against defendants
Kruszynski and the District on or before January 6, 2020. The plaintiff’s claims against
the remaining defendants, as well as her claims for injunctive relief, compensatory
damages for deprivation of companionship and loss of consortium, and punitive
damages under the ADA and the Rehabilitation Act, are dismissed without leave to
amend. The case is referred back to Judge Foschio for further proceedings consistent
with the referral order of September 8, 2017, Docket Item 5.
SO ORDERED.

Dated:

December 2, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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