Distiso v. Cook

Decision Date21 August 2012
Docket NumberDocket No. 10–4304–cv.
Citation283 Ed. Law Rep. 763,691 F.3d 226
PartiesRobin DISTISO, as next friend of Nicholas DiStiso, a minor, Plaintiff–Appellee, v. John COOK, Jacquelyn Uccello, and Tammy Couture, Defendants–Appellants.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Johanna G. Zelman and Michael J. Rose, Rose Kallor, LLP, Hartford, CT, for DefendantsAppellants.

William S. Palmieri, Law Offices of William S. Palmieri, LLC, New Haven, CT, for PlaintiffAppellee.

Before: McLAUGHLIN, POOLER, and RAGGI, Circuit Judges.

Judge POOLER concurs in part and dissents in part in a separate opinion.

REENA RAGGI, Circuit Judge:

Plaintiff Robin DiStiso, on behalf of her biracial son Nicholas, sued the Town of Wolcott, Connecticut, its Board of Education, and various named educators and administrators in Connecticut Superior Court under 42 U.S.C. §§ 1981 and 1983 and Connecticut law for alleged discrimination in connection with the child's enrollment in the kindergarten and first-grade classes at Wakelee public elementary school. Defendants removed the action to the United States District Court for the District of Connecticut, which dismissed many of plaintiff's claims, including a claim that defendants' efforts to place Nicholas in special education programs were racially motivated; a claim against the superintendent of schools, see DiStiso ex rel. DiStiso v. Town of Wolcott, No. 05–CV–1910 (PCD), 2006 WL 3355174 (D.Conn. Nov. 17, 2006); and claims against the town and the school board pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), see DiStiso ex rel. DiStiso v. Town of Wolcott, 539 F.Supp.2d 562 (D.Conn.2008). Other claims await trial, notably, for purposes of this appeal, § 1983 claims that Wakelee principal John Cook, kindergarten teacher Jacquelyn Uccello,1 and first-grade teacher Tammy Couture (hereinafter defendants) violated the Equal Protection Clause by their deliberate indifference to students' racial harassment of Nicholas. Defendants sought summary judgment, arguing that qualified immunity shields them from these deliberate indifference claims. The district court has twice ruled otherwise.

On defendants' appeal from Judge Vanessa L. Bryant's initial rejection of their qualified immunity defense, see id., this court vacated the denial of summary judgment and remanded the case to afford the district court an opportunity to reconsider the defense in light of the intervening Supreme Court decision in Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); this court's decision in Gant ex rel. Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir.1999); and the command in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson, 555 U.S. 223, 129 S.Ct. 808, that qualified immunity analysis “must be undertaken in light of the specific context of the case, not as a broad general proposition,” id. at 201, 121 S.Ct. 2151.See DiStiso ex rel. DiStiso v. Town of Wolcott, 352 Fed.Appx. 478, 481–82 (2d Cir.2009) (summary order) (internal quotation marks omitted). Defendants now appeal from the district court's decision on remand again denying them summary judgment on the ground of qualified immunity. See DiStiso ex rel. DiStiso v. Town of Wolcott, 750 F.Supp.2d 425 (D.Conn.2010).

For the reasons stated in this opinion, we affirm the denial of summary judgment as to claims that defendants Uccello and Cook were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault on Nicholas. We reverse the denial, however, as to claims that defendants were deliberately indifferent to all other allegedly racially motivated physical misbehavior by kindergarten and first-grade students. Clearly established law requires defendants to have had actual knowledge that the misbehavior, which was commonplace for such young children, was racially motivated to hold them liable for a denial of equal protection based on a theory of deliberate indifference. The record evidence, even as construed by the district court and viewed in the light most favorable to plaintiff, cannot support a finding of such actual, as opposed to imputed, knowledge.

I. BackgroundA. The Deliberate Indifference Claim

Robin DiStiso contends that from the time five-year-old Nicholas entered Jacquelyn Uccello's kindergarten class at the Wakelee school in late August or early September 2002, through March 2004, when Mrs. DiStiso and her husband Philip withdrew their son from defendant Tammy Couture's first-grade class at Wakelee, the child was subjected to persistent racial harassment by his classmates in the form of name-calling and physical misbehavior. Plaintiff maintains that defendants were made aware of this racial harassment but were deliberately indifferent to it, thereby allowing it to continue. Indeed, plaintiff asserts that the three defendants' indifference was informed by their own racial bias, as evidenced by Uccello substituting a brown crayon for a yellow one that Nicholas had been using when coloring a picture intended to depict himself, Couture pulling and dragging the child to principal John Cook's office after he refused her order to report there, and defendant Cook failing to address racial bigotry at a high school where he had previously served as principal.2

While defendants dispute these allegations, a court reviewing a motion for summary judgment must view the evidence in the light most favorable to plaintiff and draw all reasonable inferences in her favor. See Amore v. Novarro, 624 F.3d 522, 529 (2d Cir.2010). The rule is, however, subject to certain caveats. A court cannot credit a plaintiff's merely speculative or conclusory assertions. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.2008). Further, where a party relies on affidavits or deposition testimony to establish facts, the statements “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4); seeFed.R.Evid. 602.

The latter requirement is noteworthy here because, as we recognized in our earlier decision, Nicholas's deposition, taken when the child was eight years old about events occurring when he was five and six, indicates that the boy has only a limited recollection of the alleged harassment to which defendants were purportedly indifferent. See DiStiso ex rel. Distiso v. Town of Wolcott, 352 Fed.Appx. at 479 (observing that “Nicholas repeatedly testified that he did not remember or that he remembered only what he practiced with his mother the previous day in preparation for the deposition”). While his parents, at their depositions, testified to various occasions when their son came home from school complaining of racial name-calling and physical misbehavior, they have no personal knowledge of what occurred and, thus, appear competent to testify only to the fact of Nicholas's complaints, not to their truth. The DiStisos are, of course, competent to testify to personal observations of their son's condition upon return from school and to their subsequent interactions with defendants.

In moving for summary judgment, defendants questioned the admissibility of much of the DiStisos' testimony. See, e.g., Uccello's Mem. in Supp. of Summ. J. at 10, DiStiso ex rel. DiStiso v. Town of Wolcott, No. 05–CV–1910 (VLB) (D.Conn. Jan. 22, 2007), ECF No. 53–2. The district court did not address this evidentiary issue in its denial decision, leaving unclear whether it was (1) tacitly ruling in favor of plaintiff on all such disputes, or (2) reserving them for later resolution at trial. No matter. On interlocutory appeal of a qualified immunity denial, we do not review questions of “evidence sufficiency, i.e., which facts a party may, or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (internal quotation marks omitted); accord Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.1996). Thus, whatever reservations we may have as to the ultimate admissibility of the DiStisos' hearsay accounts of certain events, for purposes of this appeal, we must accept the record evidence as characterized by the district court.3

Mindful of these principles, we set forth the evidence in support of plaintiff's deliberate indifference claim by reference to its source.

1. Nicholas's Recollections
a. Racial Name–Calling

At his deposition, Nicholas testified that [m]ean kids” at Wakelee called him “bad names” including [b]lackie” and “nigger,” the latter referred to by Nicholas as the “N word.” N. DiStiso Dep. Tr. at 49–50, 52. The child could not remember the circumstances under which he was called these names or the frequency with which he was called them. Nor could he identify any child who had used such racial epithets. Indeed, he ascribed even his limited recollection of the name-calling to a recent conversation with his mother. 4

b. Physical Misbehavior

Nicholas testified that [m]ean kids” at Wakelee had punched, pinched, and hit him while they were playing, but again he could not recall the name of any child who did so. Id. at 50–52. Nicholas also testified that classmates had thrown juice boxes at him, but he was unable to recall the circumstances or participants.5 Notably, Nicholas did not testify that any of this physical misbehavior was in conjunction with or somehow linked to references to his race.

c. The Uccello Crayon Incident

Nicholas testified that his kindergarten teacher, Uccello—whom he referred to by her maiden name, “Ms. Tedeschi”—was a “mean lady,” 6 who had given him the “wrong crayon,” [a] brown crayon,” when he had been using...

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