Condit v. Bedford Cent. Sch. Dist.
| Decision Date | 16 October 2017 |
| Docket Number | No. 16-CV-6566 (CS),16-CV-6566 (CS) |
| Parties | SUSAN CONDIT and BRAD CONDIT, as legal guardians for W.C. and in their individual capacities, Plaintiffs, v. BEDFORD CENTRAL SCHOOL DISTRICT, MT. KISCO ELEMENTARY SCHOOL, JERE HOCHMAN, SUSAN OSTROFSKY, KWEON STAMBAUGH, BEVERLY DESUZA, PAULA FRIEDMAN, HELEN TEDESCO, LAURIE BAUER, MARGARET BARNACLE, DAVID GEE, MELANIE GILBERT, STEPHANIE ROEBUCK, KEANE & BEAN, PC, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Per this Order (Doc. 44), the case was to be closed if no amended complaint was filed by 11/4/17. No such amended complaint has been filed, so the Clerk of Court is respectfully directed to close the case.
SO ORDERED.
/s/_________
11/7/17
OPINION AND ORDERAppearances:
Anthony M. Giordano
Ossining, New York
Judson K. Siebert
Keane & Beane, P.C.
White Plains, New York
Lewis R. Silverman
Karen C. Rudnicki
Silverman & Associates
White Plains, New York
Before the Court are the motions to dismiss of Defendants Bedford Central School District ("District"), Mount Kisco Elementary School ("School"), and District employees Margaret Barnacle, Laurie Bauer, Beverly Desuza, Paula Friedman, David Gee, Melanie Gilbert, Jere Hochman, Susan Ostrofsky, Kweon Stambaugh, and Helen Tedesco's (the "District Defendants"), (Doc. 17), and of Keane & Beane, P.C. ("K&B")1 and Stephanie Roebuck, a lawyer at K&B (the "K&B Defendants"), (Doc. 25).
I accept as true the facts, but not the conclusions, set forth in Plaintiffs' First Amended Complaint. (Doc. 12 ("AC").)
Plaintiffs are W.C., a minor, and his parents, Susan and Brad Condit ("Plaintiff Parents"). (Id. ¶ 21.) W.C. is diagnosed with Attention Deficit Hyperactivity Disorder, Dyslexia, Expressive Language Disorder, Irritable Bowel Syndrome, and Post Traumatic Stress Disorder. (Id. ¶ 22.) W.C. had an Individualized Education Program ("IEP") that provided, among other things, special assistance from his teachers. (Id. ¶ 24.) In September 2012, W.C. entered the fifth grade at Mt. Kisco Elementary School, at which point he began experiencing bullying and harassment from a student in his class, L.C., who suffered from learning and psychological disabilities. (Id. ¶¶ 23, 26.) For example, L.C. would leave her seat, approach W.C., touch him in various places, push him, place her face directly in front of his and stare at him, all of which resulted in W.C.'s anxiety and distraction from schoolwork. (Id. ¶ 27.) Plaintiff Parents allege that even though these activities were occurring "on a daily basis," they were "wholly ignored" by W.C.'s teacher, Beverly Desuza, (id. ¶ 26), and although they made numerous complaints about L.C. to the School and the District by phone, letter, appointments, and email, "little or nothing [was done] to address the situation," (id. ¶ 30).
As an apparent result of this prolonged harassment and bullying, Plaintiff Parents increased W.C.'s anxiety medication under medical supervision in March 2013. (Id. ¶ 31.) Laterthat month, W.C. suffered a seizure brought on by the increase in his medication, had to be revived after he stopped breathing, and was hospitalized for four days. (Id. ¶¶ 32-33.) After W.C. returned to school, "he reported no changes implemented to protect him from bullying and harassment from" L.C., which continued. (Id. ¶¶ 34-35.) In April 2013, frustrated by the District's inaction, Plaintiff Parents filed a report with the local police regarding L.C. and the alleged failure of the District Defendants to protect their son. (Id. ¶ 37.)
On April 11, 2013, Roebuck sent a letter to Plaintiff Parents in her role as legal counsel for the District. (Id. ¶ 38; Doc. 33 ("Roebuck Decl.") Ex. B ("Letter").)2 Plaintiffs claim that the letter "falsely accuse[d] them of abusive threatening behavior towards the" District Defendants, was sent in "retaliation for exercising their right to petition their government by filing a police report," and "threatened plaintiff guardians with criminal prosecution." (AC ¶¶ 38-40.) Plaintiffs further contend that the Letter "sought to justify [the District's] improper and unconstitutional retaliatory action by falsely claiming that plaintiff guardians [sic] exercise of speech constituted behavior that violated the 'District Code of Conduct' and the 'Board's harassment policies regarding employee harassment,' . . . without citing any specific behavior or speech in support of this claim." (Id. ¶ 41.)
The Letter itself states that "[t]he District comes to this point for one reason and one reason only - your behavior towards the staff." (Letter at 1.) Roebuck opines that Plaintiff Parents "crossed the line with" several specified written communications sent in March and April of 2013, and directs that in the future, "should [they] wish to communicate with" theDistrict staff, they "must send a written communication through [K&B's] office . . . [and that Roebuck] will send the District's response after consultation with the appropriate staff." (Id. at 2.) The Letter also restricted Plaintiffs Parents' access to the School, stating that they would "not be allowed onto any . . . District property, except in limited circumstances." (Id.) It enumerated the circumstances (including, among other things, drop-off and the spring concert) and provided that "the District will accommodate any public event after school hours your sons participate in that other parents are invited to attend not mentioned . . . above," stating that "[a]s these events arise, [Roebuck] will contact you in writing regarding how your presence will be arranged." (Id. at 3.) The Letter makes reference to the police incident report filed earlier that month, but states that "the District welcomes any and all third party review of the actions it has taken regarding [W.C.] and his education." (Id.) Finally, the Letter informed Plaintiff Parents that L.C. "w[ould] not be removed from W.C.'s class, nor will changes be made to her IEP, unless her own education progress calls for same." (Id. at 4.)
Plaintiffs allege that K&B never contacted them to inform them of events at the school involving other parents or to provide any guidance as to how their presence would be arranged, resulting in their being barred from attending every school event involving W.C. and their other son for a period of twenty-seven months. (AC ¶ 43.) As a consequence, they allege that they were denied their constitutional rights to protect W.C. from abusive behavior occurring in a public classroom, (id. ¶ 50), to control the upbringing of W.C. free from abuse, (id. ¶ 51), and to participate in their son's education, (id. ¶ 52), and were denied "information essential to their constitutional rights as parents to participate in their son's education," (id. ¶ 54; see id. ¶ 53).
On May 23, 2013, Plaintiff Parents went to the School to vote in a public election. (Id. ¶ 46.) As they approached the School, security guards stopped them, ordered them off thepremises, escorted them from School property without having had the opportunity to vote, and threatened them with arrest should they return. (Id. ¶ 47.) K&B informed Plaintiff Parents later that day that they were allowed to return to vote, but Plaintiff Parents chose not to do so for fear that it was a ploy to have them arrested. (Id. ¶ 49.)
Plaintiffs bring four claims, including: (1) a claim under 42 U.S.C. § 1983 for First Amendment retaliation and violations of the Fourteenth Amendment resulting in denial of voting rights; (2) a § 1983 claim for due process violations for denying Plaintiff Parents a "right to contest or appeal the punitive sanctions imposed against them" under the Fourteenth Amendment; (3) § 1983 claim for retaliation resulting in disparate treatment under the First and Fourteenth Amendments; and (4) a violation of W.C.'s constitutional right to an equal education by the failure to protect him.
Plaintiffs filed a summons and notice in Westchester County Supreme Court on May 20, 2016. (Doc. 1 Ex. A.) Defendants were served with the summons and notice on or around July 28, 2016, (Doc. 1 ¶ 5), and removed the case to this Court on August 18, 2016, (see id. at 4). Plaintiffs filed a Complaint in this Court on October 27, 2016, (Doc. 8), and an Amended Complaint on December 7, 2015, (Doc. 12), but the docket does not reflect that either was served on any of the Defendants. Both sets of Defendants filed the instant motions on March 22, 2017. (Docs. 17, 25.)
The District Defendants argue that (1) the claims are time-barred and the continuing violation doctrine does not apply, (2) Plaintiffs fail to state a First Amendment retaliation claim because their speech was not chilled and they fail to allege disparate treatment, (3) Plaintiffs fail to state a due process claim, (4) Plaintiffs fail to allege a custom, policy, or practice that wouldsupport a Monell claim, (5) Plaintiffs fail to allege that the individual Defendants were personally involved, (6) Plaintiffs fail to exhaust administrative remedies for the "failure to protect" claim, which Defendants contend is more akin to an IDEA claim, (7) Plaintiffs should have appealed the Letter pursuant to New York State law, and (8) Defendants are entitled to qualified immunity. (See generally Doc. 19 ("Dist. Ds' Mem.").) The District Defendants also contend in a footnote that the Court lacks personal jurisdiction and move to dismiss under Federal Rule of Civil Procedure 12(b)(2) because Plaintiffs did not properly serve the initiating documents on the individual Defendants. (Id. at 11 n.2.) The K&B Defendants make similar arguments and join the District Defendants' motion, (Doc. 26 ("K&B Ds' Mem.") at 6), but add that they are not state actors under § 1983, (id. at 11-16). Plaintiffs respond, in essence, that they properly pleaded each of their claims, that the continuing...
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