Vassallo v. Lando

Decision Date31 October 2008
Docket NumberNo. 06-CV-2520 (JFB)(ETB).,06-CV-2520 (JFB)(ETB).
PartiesPatricia VASSALLO, as parent and natural guardian of K.V., an infant, Plaintiff, v. Stephen LANDO individually and in his official capacity as principal of Valley Stream South Junior/Senior High School, Marc F. Bernstein individually and in his official capacity as superintendent of schools of the Valley Stream Central High School District, Valley Stream Central High School District, Defendants.
CourtU.S. District Court — Eastern District of New York

Lee Nuwesra, Esq., Law Office of Lee Nuwesra, Bronx, NY, for plaintiff.

John P. Sheahan, Esq. and Kelly A. Reape, Esq., Guercio & Guercio, Farmingdale, NY, for defendants.


JOSEPH F. BIANCO, District Judge:

Plaintiff Patricia Vassallo (hereinafter, "plaintiff) brought this action on behalf of her son, K.V., against defendants Valley Stream Central High School District ("the District"), Stephen Lando ("Lando"), Principal of Valley Stream South Junior/Senior High School, and Marc F. Bernstein, Superintendent of the District schools, pursuant to 42 U.S.C. § 1983. This lawsuit arises from a search of K.V. conducted by defendant administrators at Valley Stream South Junior/Senior High School on February 14, 2006, while K.V. was an eleventh grade student at the school. The search consisted of a search of K.V.'s personal belongings, outer garments and parts of his person. Lando, with the authorization of Superintendent Bernstein and with the assistance of a local law enforcement agent, conducted the search of K.V.'s belongings based on his suspicion that K.V. was involved in starting a fire that had been set that day in the third floor boys' bathroom, and then, upon finding evidence suggesting marijuana use in his backpack, searched his outer garments and parts of his person based on the suspicion that he was in possession of drugs.

Plaintiff brings claims pursuant to 42 U.S.C. § 1983 for compensatory and punitive damages alleging that the selection of her son, who is Caucasian, for a search violated his Fourteenth Amendment right to equal protection under the theory of "selective enforcement" based upon race and disability, as well as a "class of one" theory. Plaintiff also argues that the search that ensued violated her son's Fourth Amendment protection against unreasonable search and seizure.

Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on all claims.1 For the reasons that follow, defendants' motion is granted in its entirety. In particular, it is undisputed that: (1) K.V. was in the hallway on the third floor in the vicinity of the fire shortly after the fire alarm sounded; (2) upon making eye contact with his teacher in the hallway, K.V. said nothing, put up the hood of his sweatshirt, quickened his pace, and covered the lower part of his face; (3) upon searching K.V.'s backpack for evidence related to the fire (such as matches, lighters, or an accelerant), Lando found marijuana seeds; (4) at the direction of Lando and a police officer, K.V.'s sweatshirt, shoes, and socks were removed and his shirt and pants legs lifted, but his pants and shirt were never removed; and (5) upon observing a bulge in his waistband, K.V. was directed to remove the object and K.V. removed a bag containing a small amount of marijuana from his waistband. Given these undisputed facts, the Court concludes as a matter of law that defendants are entitled to summary judgment on the Fourth Amendment claim because, under the Supreme Court's decision in New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the search was justified at its inception and was reasonably related in scope at all times to the circumstances that justified the intrusion. In any event, at a minimum, defendants would be entitled to qualified immunity on this claim given these undisputed facts.

Similarly, with respect to the equal protection claim, although two unidentified non-Caucasian students were running in the hallway in the vicinity of the fire, it is undisputed that: (1) Lando did not have the names of these students at the time of incident; and (2) in the three days following the fire, Lando interviewed a number of students who (based on school documents) were out of the their classrooms at the time of the fire, including students of races different than K.V., but was not able to determine who was responsible for the fire. Given these undisputed facts, no rational jury could conclude that K.V. was interviewed and searched on the day of the fire based upon his race (and/or his learning disability) under a theory of selective enforcement, nor is there any legal or factual basis for a "class of one" claim. Thus, summary judgment for defendants on the equal protection claim also is warranted. In short, although plaintiff points to a number of factual disputes that plaintiff argues preclude summary judgment, none of those factual disputes create a genuine issue for trial because, even on plaintiffs version of events, the Fourth and Fourteenth Amendment claims fail as a matter of law.


The facts related below are taken from the parties' depositions, exhibits and respective Local Rule 56.1 statement 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 New York, 422 F.3d 47, 50 (2d Cir.2005).

At the time of the incident which forms the basis for plaintiffs cause of action, K.V. was an eleventh grade student at Valley Stream South Junior/Senior High School. (Defendants' Local 56.1 Statement of Material Facts ("Defs.' 56.1") ¶ 1.)2 On February 14, 2006, K.V. was assigned to ninth period study hall, which was held in a classroom on the southeast end of the third floor of the school building. (Defs.' 56.1 ¶¶ 2-3; K.V. Dep. at 18-19, 23-24, 53; Reape Aff. Ex. C.) Shortly after the start of the ninth period, K.V. was excused from study hall to conduct research in the library, which was located on the first floor almost directly below the study hall classroom. (Defs.' 56.1 ¶¶ 4-5; K.V. Dep. at 20-21, 24-25; Reape Aff. Exs. C, D.) After completing his research some ten to fifteen minutes later, K.V. traveled to the second floor to retrieve a pen from his locker, located on the second floor in the north hallway. (Defs.' 56.1 ¶¶ 9-11; K.V. Dep. at 29-30, 33, 38-39; Reape Aff. Exs. C, D.) Two to three minutes later, K.V. then proceeded to the third floor via Stairway D, located on the northeast corner of the building. (Defs.' 56.1 ¶¶ 12-13; K.V. Dep. at 34, 38, 133; Reape Aff. Ex. C.)

Soon after the beginning of ninth period, a fire was reported in the boys' bathroom located on the north side of the third floor of the building. (Plaintiff's Local 56.1 Statement of Material Facts ("PL's 56.1") ¶ 14; Lando Dep. at 51-52, 56-57; Reape Aff. Ex. C.) A Caucasian student, C.H was walking towards that bathroom when he encountered an African-American student walking away from it. (C.H. Dep. at 25-26.) After entering the bathroom and witnessing the fire, C.H. attempted to report the fire to a teacher, Mr. Lee, who was already aware of it. (Pl's 56.1 ¶¶ 14-15; C.H. Dep. at 15.)3 C.H. then returned to his classroom and reported the fire to his teacher, Ms. Lowe. (C.H. Dep. at 23.) According to plaintiff, when the fire alarm sounded, K.V. was walking up Stairway D to the third floor. (Defs.' 56.1 ¶ 18; K.V. Dep. at 40-41; Reape Aff. Ex. C.) As K.V. walked down the east corridor from the stairway toward his study hall classroom, he saw two younger male students running down the corridor from the direction of the bathroom. (Defs.' 56.1 ¶¶ 19-21; K.V. Dep. at 42-45.) K.V. identified the two students as African-American and Hispanic, respectively. (PL's 56.1 ¶ 20(a); K.V. Dep. at 42-45.)

After the two students ran past K.V., he encountered a teacher, Mr. Boyd, in the east corridor. (Defs.' 56.1 ¶ 23; K.V. Dep. at 46-48.) K.V. made eye contact with Mr. Boyd, pulled up the hood of his sweatshirt, covered the lower part of his face, quickened his pace, and proceeded to walk past him without speaking. (Defs.' 56.1 ¶¶ 26-29; K.V. Dep. at 55-57, 63-65, 67-70; Boyd Hearing Tr. at 151.)4

After the building was evacuated, C.H. spoke with Lando and informed him that he had seen an African-American student walking down the corridor of the third floor where the bathroom fire occurred, moments prior to discovering the fire; he did not identify the student by name. (C.H. Dep. at 25-26.) Soon thereafter, Mr. Boyd informed Lando that he had seen K.V. walking around the corner from the corridor where the fire took place and that he had also seen two younger students whom he could not identify running down that same hallway.5 (Boyd Hearing Tr. at 154.) Lando asked Mr. Boyd to bring K.V. to his office. (Defs.' 56.1 ¶ 33; Lando Dep. at 64.) Approximately twenty minutes after the evacuation was complete, Mr. Boyd and another teacher approached K.V. in the parking lot of school, informed him that Lando wanted to see him, and escorted him to Lando's office. (Defs.' 56.1 ¶¶ 34-36; K.V. Dep. at 70-74, 76.) Lando told K.V. at that time that he was suspected of starting the fire in the bathroom and that he intended to search his personal belongings and outer garments for evidence of K.V.'s involvement in the fire, such as matches, lighters or accelerants. (Defs.' 56.1 ¶¶ 39, 41-43; K.V. Dep. at 75-78, 89; Lando Dep. at 90-94, 100.) K.V. informed Lando that he had encountered two other students in the immediate vicinity of the fire soon after the fire alarm sounded, but could not identify them by name. (Lando Dep. at 156.) K.V. denied that he started the fire and stated that Lando had no right to search him. (Defs.' 56.1 ¶¶ 40, 44; K.V. Dep. at 77-79; Lando Dep. at 91.) Lando stated that...

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