D.W.M. v. St. Mary Sch.

• Decision Date: 27 August 2019
• Docket Number: 2:18-cv-3099 (DRH)(GRB)
• Parties: D.W.M., a minor by Willie Moore, his father and Ursula Moore, his mother, D.D.M., a minor by Willie Moore, his father, and Ursula Moore, his mother, WILLIE MOORE, and URSULA MOORE, Plaintiffs, v. ST. MARY SCHOOL, BIAGIO M. ARPINO, Principal of St. Mary School, THE ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE, KERRI LECHTRECKER, individually and as the mother of L.M., an infant, MIKE JONES and CHRISTINE JONES, individually and as as parents and natural guardians of M.J., an infant, and KRZYSZTOF MARS and and DOROTA MARS, individually and as the parents and natural guardians of M.M., an infant, Defendants.
• Court: U.S. District Court — Eastern District of New York

D.W.M., a minor by Willie Moore,his father and Ursula Moore, his mother, D.D.M.,a minor by Willie Moore, his father, and Ursula Moore,his mother, WILLIE MOORE, and URSULA MOORE, Plaintiffs, v. ST. MARY SCHOOL, BIAGIO M. ARPINO, Principal of St. Mary School,THE ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE,KERRI LECHTRECKER, individually and as the mother of L.M.,an infant, MIKE JONES and CHRISTINE JONES,individually and as as parents and natural guardians of M.J.,an infant, and KRZYSZTOF MARS and and DOROTA MARS,individually and as the parents and natural guardians of M.M., an infant, Defendants.

2:18-cv-3099 (DRH)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 27, 2019

MEMORANDUM AND ORDER

APPEARANCES

LAW OFFICES OF CORY H. MORRIS

Attorney for all Plaintiffs

33 Walt Whitman Rd Suite 310

Dix Hills, NY 11746

By: Cory H. Morris, Esq.

YANNACONE & YANNACONE PC

Attorney for Plaintiffs D.W.M. and D.D.M.

P.O. Box 109

Patchogue, NY 11772

By: Victor John Yannacone, Jr., Esq.

PATRICK F. ADAMS, P.C.

Attorney for Defendants St. Mary School, Biagio M. Arpino, and The Roman Catholic Diocese of Rockville Centre

3500 Sunrise Highway Building 300

Great River, NY 11739

By: Joseph M. Nador, Esq.

JOHN RAY & ASSOCIATES

Attorneys for Defendant Kerri Lechtrecker

122 N. County Road

Miller Place, NY 11764

By: Vesselin Venelinov Mitev, Esq.

John W. Ray, Esq.

GUERCIO & GUERCIO, LLP

Attorneys for Defendants Mike Jones and Christine Jones

77 Conklin Street

Farmingdale, NY 11753

By: Christopher Mestecky, Esq.

Anthony J Fasano, Jr., Esq.

TIERNEY & TIERNEY

Attorney for Defendants Krzysztof Mars and Dorota Mars

409 Route 112

Port Jefferson Station, NY 11776

By: Stephen A. Ruland, Esq.

HURLEY, Senior District Judge:

INTRODUCTION

Plaintiffs Ursula Moore and Willie Moore, individually and on behalf of their infant sons, D.W.M. and D.D.M. ("Plaintiffs"), brought the instant action against Defendants St. Mary School ("St. Mary"), Biagio M. Arpino ("Arpino"), The Roman Catholic Diocese of Rockville Centre (the "Diocese," collectively with St. Mary and Arpino, the "School Defendants"), Kerri Lechtrecker, individually and as the mother of L.M., an infant, Mike Jones and Christine Jones, individually and as parents and natural guardians of M.J., an infant, and Krzysztof Mars and Dorota Mars, individually and as the parents and natural guardians of M.M., an infant (collectively with the School Defendants, "Defendants"), for violations of the Federal CivilRights Act. Additionally, Plaintiffs bring state law claims of negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, prima facie tort, and breach of contract. Presently before the Court are Defendants' motions to dismiss the Complaint pursuant to Fed. R. Civ. P. ("Rule") 12(b)(1) for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state a claim. For the reasons explained below, the motions to dismiss pursuant to Rule 12(1)(1) are denied, and the motions pursuant to Rule 12(b)(6) are granted in part and denied in part.

BACKGROUND

The following relevant facts come from the Fifth Amended Complaint¹ and are assumed true for purposes of these motions.

Plaintiff D.W.M. is an African American male child. (Fifth Am. Compl. [ECF No. 27] ¶ 28.) At the time of the cyberassault later described, Plaintiff D.W.M. was approximately thirteen or fourteen years of age, and was about to graduate from the eighth grade at St. Mary. (Id.) Plaintiff D.D.M. is an African American male child who was eleven years of age, and a student in the sixth grade at St. Mary at the time of the cyberassault. (Id. ¶ 30) Plaintiff D.W.M. and Plaintiff D.D.M. are brothers. (Id.) Plaintiffs Ursula Moore and Willie Moore are parents of the infants D.W.M. and D.D.M. (Id. ¶¶ 32-33.)

Defendant St. Mary is a Catholic elementary and middle school in East Islip, New York that is under the jurisdiction and control of Defendant the Diocese. (Id. ¶ 36.) Defendant Mr. Arpino is the Principal of St. Mary. (Id. ¶ 58.) Infants L.M., M.M., and M.J. were classmates ofPlaintiff D.W.M. at St. Mary at the time of the incident and filing of the Complaint. (Id. ¶¶ 62, 64 66.)

The events giving rise to this action occurred on December 7, 2017 and April 12, 2018. (Id. ¶¶ 90-110.) On December 7, 2017, the student L.M. launched a cyberassault against Plaintiff D.W.M. by posting numerous denigrating images on one or more "Discord" channels under the alias, "Jared." (Id. ¶ 101.) (emphasis in original). Discord is identified as a text and voice platform for video game players, which contains 12,000 real-time chat roo ms for online users to communicate. (Id. ¶ 73.) Once L.M. launched his cyberassault via Discord, both M.M. and M.J. reposted the images to their Discord channels as well as to one or more other channels. (Id. ¶ 76.) M.M. subsequently transmitted one or more of the cyberassault images through an email account associated with St. Mary, and claimed the images were for a school project. (Id. ¶ 110.)

The cyberassault consisted of eight disturbing images. (Id. ¶¶ 90-110.) The first image, sent on December 7, 2017, depicted a "Minion" (a small, yellow creature from the movie "Despicable Me") next to the words: "Black People Are Not Functioning Members Of Society" written down the right-hand side of the image. (Id. ¶ 90.) The second image, also sent on December 7, 2017, displayed what appeared to be a young male holding a gun to his head. (Id. ¶ 91.) The caption of the second image read: "how to cure autism really fast." (Id.) Plaintiff D.W.M. claims that he perceived the image "as a threat that if he did not commit suicide the cyberbullies L.M., M.J., and M.M., individually and/or collectively, jointly and/or severally, would kill him themselves just because he was a black African American." (Id.) The third image, sent the same day, was a TV news headline featuring a noose, and the caption: "Man Dies After Killing Himself." (Id. ¶ 94.) After receiving the third image, Plaintiff D.W.M. says that helived in a constant state of fear, as he interpreted the image to be an "overt threat of being lynched." (Id.) The fourth and final cyberassault image sent on December 7, 2017 depicted a "Ku Klux Klansperson in a white sheet and hood with their arm raised in the 'Seig Heil' Nazi salute signaling obedience and devotion to the party leader Adolf Hitler . . . ." (Id. ¶ 97.) Below the image of the hooded figure, L.M. wrote the comment: "he my dad." (Id.) Plaintiff D.W.M. states that he did not report the cyberassault of December 7, 2017, to St. Mary or his parents because he was fearful and intimidated. (Id. ¶ 102.)

The remaining four cyberassault images were sent on April 12, 2018. (Id. ¶¶ 97-109.) The fifth image was titled "[D.W.M.]_kill," and depicted two cartoon characters engaged in combat. (Id. ¶ 104.) Plaintiff D.W.M.'s face was superimposed onto the body of one of the cartoon characters. (Id.) The sixth cyberassault image, entitled "[D.W.M.]_is_the_trash_man," illustrated Plaintiff D.W.M.'s face inside of a trashcan. (Id. ¶ 106.) The seventh image showed a male holding a gun to the side of his head, and was given the title "[D.W.M.]_oof." (Id. ¶ 107.) Plaintiff D.W.M.'s face was photoshopped onto the body of the male depicted in the seventh image. (Id.) Plaintiffs explain that "oof" is the noise made by a dying player of "Roadblocks," a computer game well known to adolescent males. (Id. ¶ 108.) The eighth, and final cyberassault image, portrayed Plaintiff D.W.M.'s face on the body of a saluting Nazi soldier. (Id. ¶ 109.)

Believing that his life was in danger, D.W.M. showed the cyberassault images to his mother, Plaintiff Ursula Moore, on April 13, 2018. (Id. ¶ 111.) Plaintiff Ursula Moore immediately sent an email to Theresa Gelling, the seventh and eighth grade science teacher at St. Mary. (Id. ¶ 112.) On April 14, 2018, Ms. Gelling responded to Plaintiff Ursula Moore's email, and stated: "I immediately sent an email to L.[M.]'s mother telling her that she must have him remove these images at once. I also requested that she go through all of L.[M.]'s previouspostings as well. I have notified both Mr. Arpino and Mrs. Ceramello." (Id. ¶ 113.) After receiving the email from Ms. Gelling, Plaintiff Ursula Moore had a meeting with the technology administrator of St. Mary and the Diocese Technology Representative on April 16, 2018. (Id. ¶ 117.) That same day, Plaintiff Ursula Moore was informed of infant M.M.'s and M.J.'s involvement in the cyberassault. (Id. 116.). Ms. Moore was also told infant L.M. made some type of admission regarding the attack, the exact details of which the Parties have not disclosed to the Court. (Id.)

On April 20, 2018, Defendant Mr. Arpino responded by letter to Plaintiff Ursula Moore's concerns. (Id. ¶ 118.) The letter stated that St. Mary took immediate steps to ensure Plaintiff D.W.M.'s safety, and to separate Plaintiff D.W.M. from the "boy he was most concerned with for the remainder of the year." (Id.) Additionally, the letter claimed that: "[a]ll students involved were given appropriate consequences . . . . All teachers and staff members working with these students have been told to oversee the students to prevent future negative interactions whenever possible." (Id.) Furthermore, Plaintiff Ursula Moore was informed that: "[her] son was given a plan to follow to ensure he has a means to be proactive should he feel unsafe." (Id.) Plaintiff Ursula Moore asserts that the "plan" provided to Plaintiff D.W.M. was solely a suggestion that he speak up when he feels he is being bullied. (Id. ¶ 124..) Plaintiffs aver that no meaningful or effective steps were taken to ensure a "sense of safety" for Plaintiff D.W.M., and that L.M., M.M., and M.J. were never separated from D.W.M. or removed from St. Mary at any time. (Id. ¶¶ 123-26.)

Plaintiffs claim that Defendants are collectively, or severally, engaged in a conspiracy to cover up the cyberassault against Plaintiff D.W.M to protect the "i...