Jane Doe v. E. Irondequoit Cent. Sch. Dist.

• Decision Date: 07 May 2018
• Docket Number: 16-CV-6594 (CJS)
• Parties: JANE DOE, a minor, by and through her parents and natural guardians, D. DOE and C. DOE, Plaintiffs, v. EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT, EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, SUSAN ALLEN, individually and in her official capacity, JOHN ABBOT, individually and in his official capacity, KATHY CALLON, individually and in her official capacity, RENALDO VEGA and PHILLIP OBERST, individually and in his official capacity, Defendants.
• Court: U.S. District Court — Western District of New York

JANE DOE, a minor, by and through her parentsand natural guardians, D. DOE and C. DOE, Plaintiffs, v. EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT,

EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION,

SUSAN ALLEN, individually and in her official capacity, JOHN ABBOT,

individually and in his official capacity, KATHY CALLON,

individually and in her official capacity, RENALDO VEGA and PHILLIP OBERST,

individually and in his official capacity, Defendants.

16-CV-6594 (CJS)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

May 7, 2018

DECISION AND ORDER

APPEARANCES

For Plaintiff:

Anthony G. Sanchez

Sanchez Legal Group, LLC

301 Castle Shannon Boulevard

Pittsburgh, Pennsylvania 15234

Robert S. King

Law Office of Robert King, PLLC

19 West Main Street, Suite 250

Rochester, New York 14614

For the East Irondequoit

School Defendants:

James H. Cosgriff, III

Petrone & Petrone, P.C.

5500 Main Street, Suite 342

Williamsville, New York 14221

INTRODUCTION

Plaintiffs maintain that Defendants discriminated against high school student Jane Doe ("the Child") in violation of her rights under the U.S. Constitution and federal disability statutes, and also committed various torts under New York State Law, by failing to protect her from sexual abuse committed by a school bus driver, Renaldo Vega. Now before the Court is a motion (Docket No. [#14]) to dismiss the Amended Complaint [#13], for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1), and for failure to state a claim, pursuant to FRCP 12(b)(6), filed by all defendants except Vega ("Movants"). The motion pursuant to Rule 12(b)(6) is granted in its entirety, and all claims against Movants are dismissed with prejudice. The case will proceed as to Mr. Vega.

BACKGROUND

Unless otherwise noted, the following facts are taken from the Amended Complaint [#13]. At all relevant times, the Child was a student at the East Irondequoit Central School District ("the School"). At all relevant times, the individual Defendants were employees of the School, in the following capacities: Susan Allen ("Allen") was the School's Superintendent; John Abbott ("Abbott") was the Deputy Superintendent; Philip Oberst ("Oberst") was an Assistant Superintendent; Kathleen Callon ("Callon") was the Transportation Director; and Vega was a bus driver.

At all relevant times the Child was "a special needs student" with an individualized education program ("IEP"). During the 2014-2015 school year, the Child attended a program at the Board of Cooperative Educational Services ("BOCES"), to which she was transported in a school bus operated by Vega. In or about December 2014, the Child was alone with Vega on the school bus at various times, as she was the only student being transported to BOCES by Vega. During that same period, Vega sexually assaulted the Child.

The Child and her parents, plaintiffs D. Doe and C. Doe, subsequently learned that in 2013, more than a year prior to the sexual assault, Vega had been arrested and charged with having "acted in a manner injurious to a child who was less than 17 years of age." Asthis purportedly occurred in New York State, and from discussions during oral argument, the Court understands Plaintiffs to mean that Vega was charged, under New York Penal Law § 260.10, with "Endangering the welfare of a child." This statute provides, in pertinent part, as follows:

A person is guilty of endangering the welfare of a child when: 1. He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health; or 2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he or she fails or refuses to exercise reasonable diligence in the control of such child to prevent him or her from becoming an "abused child," a "neglected child," a "juvenile delinquent" or a "person in need of supervision," as those terms are defined in articles ten, three and seven of the family court act. . . . Endangering the welfare of a child is a class A misdemeanor.

N.Y. Penal Law § 260.10 (McKinney). As the foregoing quotation indicates, Penal Law § 260.10 potentially covers a wide spectrum of injurious conduct. For example, the crime of endangering the welfare of a child has been found to include such varied conduct as "inappropriate physical contact," People v. Toft, 156 A.D.3d 1234, 1235 (3d Dept. 2017), handing a child a lit cigarette for him to smoke, see, People v. Cardona, 42 Misc.3d 194, 973 N.Y.S.2d 915 (Crim. Ct., City of New York, Bronx County 2013), or selling fireworks to a child, see, People v. Suquisupa, 167 Misc.2d 109, 637 N.Y.S.2d 302, 304 (Supreme Court, Bronx County 1996). One can also violate the statute by failing to prevent one's own child from becoming a "juvenile delinquent." Penal Law § 260.10(2).

A defendant can be guilty of the crime even if his conduct was not directed at a child, and even if a child was not actually harmed. See, e.g., People v. Mineccia, 55 Misc. 3d 1219(A), 58 N.Y.S.3d 875 (N.Y. Co. Ct. 2017) ("Defendant argues that no harm actuallycame to the child, however, actual harm to the child need not result nor does defendant's conduct need not be specifically directed at a child (see Pattern Criminal Jury Instructions, Penal Law § 260.10[1] )."); see also, People v. Mitchell, 24 Misc. 3d 1249(A), 899 N.Y.S.2d 62 (Sup. Ct. 2009) ("[T]he People must allege facts that establish reasonable cause to believe that defendant acted in a manner which was likely to result in harm to a child and that defendant was aware that the conduct might likely result in harm to the child, whether the conduct was directed at the child or not.") (citation omitted). Moreover, as noted above, "[t]he harm to which the statute refers [under sub-section 1 may be] "physical, mental or moral[.]" People v. Noce, 24 Misc. 3d 1202(A), 889 N.Y.S.2d 883 (Dist. Ct. 2009).

The Amended Complaint does not indicate the particular sub-section of the statute under which Vega was charged, nor does it indicate the factual basis of the charge against Vega. That is, the pleading does not allege how Vega allegedly endangered the welfare of a child. For example, the pleading does not indicate that Vega's alleged misconduct was sexual in nature. The pleading does not allege any particular characteristic, such as the sex, of the alleged victim. The pleading also does not allege that Vega was ever convicted of the crime. During oral argument of the subject motion to dismiss, counsel for the East Irondequoit School District represented, as an officer of the Court, and without dispute from Plaintiff's counsel,¹ that the charge was eventually dismissed and the case was sealed. However, for purposes of the instant motion to dismiss, the Court merely notes that no facts have been alleged concerning the nature of the accusation against Vega in 2013, other than that it involved some unspecified type of action that could have resulted in harm to a child less than seventeen years of age.

The Amended Complaint indicates that school officials were notified that Vega had been charged under Penal Law § 260.10, and that they temporarily suspended his employment. However, the allegations do not indicate which school employee(s), specifically, had notice of the criminal charge, or what, if anything, they knew about the underlying facts. On this point, the pleading states:

On or before October 17, 2013, Vega's conduct was reported to all or some of the School Defendants and the Board. On or about October 17, 2013, the Board and School Defendants temporarily placed Vega on administrative leave.

Amended Complaint [#13] at ¶ ¶ 72-73. The pleading further indicates that on or about October 24, 2013, the School District "reinstated" Vega's employment, while the criminal charge was still pending against him.² The pleading contends that School Officials failed to perform any type of investigation of the circumstances involved in the criminal accusation against Vega, before allowing him to return to work.

Although Plaintiffs presently have no idea what such an investigation would have discovered, it is one theory of their case that the School District's alleged failure to investigate is the cause of the injury to the child more than a year later. Plaintiffs maintain, in that regard, that the mere fact of that Vega was charged with "endangering the welfare of a child" should have provided notice that he was likely to commit a sexual assault against a female student. For example, the Complaint asserts that due to having received notice of the criminal charge, "[t]he Board and School District knew or should have known that Vega had a propensity for engaging in conduct such as inappropriately touching, harassing and sexually assaulting minors and females."³

On August 25, 2016, Plaintiffs commenced this action. The Complaint [#1] purported to assert the following thirteen causes of action: I) "Section 1983 - Violation of Due Process and Equal Protection," asserted against the School District and Board of Education; II) "§ 1983 - Violation of the Constitutional Right to Bodily Integrity," asserted against Allen, Abbott, Oberst, Callon and Vega; III) "§ 1983 - Improper Hiring, Training, Retention, and Supervision," asserted against the School District, Board of Education, Allen, Abbott, Oberst and Callon; IV) "Title IX - Harassment," asserted against the School District; V) "Title IX - Failure to Remedy Harassment," asserted against the School District; VI) "[Section 504 of the] Rehabilitation Act - Discrimination on Basis of Disability," asserted against the School District; VII) "[Americans with Disabilities Act ("]ADA[")] - Discrimination on the Basis of Disability," asserted against the School District; VIII) "Assault and Battery," asserted against Vega; IX) ...