Defabio v. East Hampton Union Free School Dist., 07-CV-1717 (JFB)(ARL).

• Citation: 658 F.Supp.2d 461
• Decision Date: 01 October 2009
• Docket Number: No. 07-CV-1717 (JFB)(ARL).,07-CV-1717 (JFB)(ARL).
• Parties: Daniel DeFABIO, Patricia DeFabio, and Michael Rusinsky, Plaintiffs, v. EAST HAMPTON UNION FREE SCHOOL DIST., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

658 F.Supp.2d 461

Daniel DeFABIO, Patricia DeFabio, and Michael Rusinsky, Plaintiffs, v. EAST HAMPTON UNION FREE SCHOOL DIST., et al., Defendants.

No. 07-CV-1717 (JFB)(ARL).

United States District Court, E.D. New York.

October 1, 2009.

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Raymond G. Kuntz, Esq., Leah L. Murphy, Esq., of Kuntz, Spagnuolo & Murphy, P.C., Bedford Village, NY, for Plaintiffs.

Jeltje DeJong, Esq., David H. Arnsten, Esq., Kelly E. Wright, Esq., of Devitt, Spellman, Barrett, LLP, Smithtown, NY, For defendants.

AMENDED MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiffs Daniel DeFabio ("Daniel" or "D.D."), Patricia DeFabio ("Ms. DeFabio") and Michael Rusinsky ("Mr. Rusinsky") (collectively, "plaintiffs") bring this action, pursuant to 42 U.S.C. § 1983, against the defendants, alleging violation of Daniel's constitutional rights under the First and Fourteenth Amendments to the United States Constitution, including freedom of speech, freedom of association, due process and equal protection. Plaintiffs also claim the defendants slandered and libeled Daniel under state law, and committed other violations of state law. Plaintiff further asserts that defendants' actions caused Ms. DeFabio and Mr. Rusinsky to suffer humiliation, embarrassment, depression, mental anguish, anxiety, and other pain and suffering, and to expend money on education, travel, medical and mental health expenses in order to make themselves whole.

The claims relate to events at East Hampton High School on April 26, 2004, while Daniel was a sophomore at the school, and the school officials' decisions on that day, and in the time period that followed, with respect to Daniel. Specifically, plaintiffs allege that, on April 26, 2004, a racially offensive comment was falsely attributed to Daniel concerning the death of a Hispanic student and that the school violated his rights to freedom of speech and association by preventing him from proclaiming his innocence at the school over the public announcement system, at a school assembly, or by some other mechanism. Plaintiffs further allege that school officials' decision to expel Daniel from the school—allegedly without notice, a proper hearing, or the ability to fairly confront his accusers—violated his procedural and substantive due process rights, as well as his equal protection rights.

Defendants now move for summary judgment. For the following reasons, defendants' motion for summary judgment is granted on the Section 1983 claims. The Court declines to exercise supplemental jurisdiction over any state claims and, thus, dismisses those claims without prejudice.

I. BACKGROUND

A. Facts

The facts described below are taken from the parties' depositions, affidavits, exhibits and the parties' Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of N.Y., 422 F.3d 47, 54-55 (2d Cir.2005).

During the school year of 2003-2004, Daniel was a tenth grade student at East Hampton High School. (Defendants' Local Rule 56.1 Statement of Facts ("Defs.' 56.1") ¶ 1.)¹ Ms. DeFabio is Daniel's mother. (Defs.' 56.1 ¶ 2.) Mr. Rusinsky is not Daniel's biological or adoptive father, and is not married to Ms. DeFabio, but he resides in the family home of Daniel and Ms. DeFabio, considers himself Daniel's stepfather, and was a parental authority with whom the school could communicate concerning Daniel. (Rusinsky Dep. at 7, 13-19.)

On April 24, 2004, a Hispanic student from East Hampton High School was killed in a motorcycle accident. (Defs.' 56.1 ¶ 4.) The following Monday, April 26, 2004, was a day of mourning in East Hampton High School. (Defs.' 56.1 ¶ 4.) That morning, Daniel asserts that, as he was walking in the hall to his third period class, he heard a student say "one down, 40,000 to go," in an apparent reference to the student who died. (Daniel Dep. at 24.) According to Daniel, he (Daniel) then repeated this statement to another student, D.A. (Defs.' 56.1 ¶ 6; Daniel Dep. At 33.) Specifically, Daniel testified that he whispered "I just heard someone say `one down, 40,000 to go'" to D.A. with his hand cupped around D.A.'s ear.² (Daniel Dep. at 34.) Throughout that day, word spread through school that Daniel was the originator of the "one down, 40,000 to go" comment. (Defs.' 56.1 ¶ 7.) For example, Ralph Naglieri, who was a guidance counselor and was in the auditorium that had been designated for students as an area where they could mourn, spoke with a student, S.U, and, S.U. was very upset and speaking loudly about a student in the cafeteria who had made a comment about Hispanic students. (Naglieri Dep. at 8-10.) S.U. advised both Naglieri and another school staff member that people were very upset over the comment and pointed Daniel out as the person who had made the comment. (Id. at 10-11.)

Also, during eighth period that afternoon, while Daniel was in the cafeteria celebrating a friend's birthday, a group of 4 or 5 Latino students came up to him yelling about a racist comment. (Daniel Dep. at 39-41.) Daniel did not fully understand what they were saying, but one of them threw something at Daniel. (Id. at 41) Daniel then told them that he had done nothing wrong, and they walked away. (Id.) Daniel was scared and thought he was going to be beaten up. (Defs.' 56.1 ¶ 9.) A few minutes after this confrontation, Naglieri approached Daniel's table and "physically grabbed" him and told him, "come with me." (Daniel Dep. at 45-46.) Daniel did not resist because he was "pretty scared." (Defs.' 56.1 ¶ 10.)

Mr. Naglieri took Daniel to the nurse's office. Daniel had a sense that these incidents had to do with the "one down, 40,000 to go" comment. (Defs.' 56.1 ¶ 12.) Mr. Naglieri asked Daniel about the comment, and Daniel denied that he originated the remark. (Defs.' 56.1 ¶ 13; Daniel Dep. at 49-50.) Daniel explained to Mr. Naglieri that he overheard the statement being made by someone else and that he merely repeated it. (Defs.' 56.1 ¶ 14.) An Assistant Principal then came to the nurse's office and asked Daniel if he made the statement. Daniel said no. (Defs.' 56.1 ¶ 15.)

Daniel was in the nurse's office for about twenty minutes. (Daniel Dep. at 50, 54.) During this time, there were "a lot" of Latino students looking into the office through a window, which made Daniel uncomfortable and afraid. Daniel heard people outside yelling that they were going to kill him. (Defs.' 56.1 ¶¶ 16-17.) Principal Scott Farina called the police to escort Daniel from school, and Daniel "ran" out with an Assistant Principal and the police officer on either side of him. (Defs.' 56.1 ¶¶ 18-19; Daniel Dep. at 56-58.) As Daniel left, the Latino students he saw outside the nurse's office were still there, and some were yelling in Spanish. (Daniel Dep. at 58-59.) People at school made threats that they would kill Daniel and bomb his house, making him even more frightened than before. (Defs.' 56.1 ¶ 20.)

Ms. DeFabio was informed that Daniel was being sent home from school because there were 150 students who wanted to knock down his door and beat him up. (Defs.' 56.1 ¶ 21.) That evening, Principal Farina did not tell Ms. DeFabio that Daniel was suspended, but told her that he should stay home for a few days because it was not safe for him to return to school until the situation calmed. (Defs.' 56.1 ¶¶ 22-24.)

The parties dispute whether Daniel was suspended as of being sent home on April 26, 2004. Defendants contend that he was simply sent home for his safety at that point, and was not suspended. (Farina Dep. at 20.) Plaintiffs, however, contend that he was suspended, as he was removed from school and not permitted to return. (Pls.' 56.1 ¶ 24.) They further contend that the situation had calmed down by the time the police arrived at the school and, therefore, there was no need to send Daniel home. (Farina Dep. at 40.)

On Tuesday, April 27, 2004, Daniel prepared a letter proclaiming his innocence and asked Principal Farina if he could read it over the loudspeaker. (Defs.' 56.1 ¶ 25.) Principal Farina denied this request, stating that he thought it would make the students angrier and would cause more problems in the school. (Defs.' 56.1 ¶ 25.) Daniel also requested permission to read the statement at a school assembly, but this was also denied. (Defs.' 56.1 ¶ 26.)

The parties dispute whether an investigation into the issue was conducted between April 26, 2004 and April 30, 2004. Defendants contend that Principal Farina conducted an investigation, in which he interviewed Daniel and several other students to get their recollections of what had occurred. (Farina Dep. at 20-21.) Plaintiffs point to the findings of the Commissioner of Education—namely, that "the principal admitted that his investigation did not include any subsequent interviews with D.D. after the day of the incident and there were no written reports of any investigation to substantiate the charges," to support their contention that no investigation was conducted. (Commissioner's Decision, dated August 7, 2006, at 5.)

On April 28, 2004, a meeting was held between Ms. DeFabio, Mr. Rusinsky, Principal Farina, guidance counselor Caryn Lieber, and Assistant Principal Michael Burns. Principal Farina advised that Daniel's continued absence was necessary in order to calm the situation. (Defs.' 56.1 ¶ 28.) At that time, Daniel had mixed feelings about returning to school—he wanted to in one respect, but he remained scared. (Defs.' 56.1 ¶ 29.)

On April 30, 2004, plaintiffs were advised that Daniel was being suspended from school for 5 days and that a Superintendent's hearing might be convened. (Defs.' 56.1 ¶ 30.) Between April 26, 2004 and May 7, 2004, plaintiff received a couple of threatening phone calls to his house...