Velez v. Levy
| Decision Date | 29 July 2003 |
| Docket Number | No. 02 Civ.6406 JGK.,02 Civ.6406 JGK. |
| Citation | 274 F.Supp.2d 444 |
| Parties | Amy VELEZ, Plaintiff, v. Harold O. LEVY, Jacob Goldman, Nancy Ortiz, Joyce Early, Thomas Hyland, Robert Colon, Anthony Deleo Defendants. |
| Court | U.S. District Court — Southern District of New York |
James I. Meyerson, New York City, for Plaintiff.
This action is brought by the plaintiff Amy Velez pursuant to 42 U.S.C. § 1983 for alleged violations of the plaintiff's federal constitutional rights and arises out of the plaintiff's removal as a board member on the New York City Community School District Board # 1 ("School Board # 1"). The plaintiff raises fourteen causes of action against Harold 0. Levy ("Levy"), former Chancellor of the City School District of New York; Jacob Goldman ("Goldman"), Nancy Ortiz ("Ortiz"), and Joyce Early ("Early"), who are other members of School Board # 1; Thomas Hyland ("Hyland"), Deputy Director of the Chancellor's Office of Special Investigations; and Roberto Colon ("Colon") and Anthony Deleo ("Deleo"), investigators in the Office of Special Investigations, (collectively "the defendants"). The plaintiff has raised various federal constitutional claims against some or all of the defendants. The plaintiff alleges that her removal from School Board # 1, and the investigation that led up to this removal deprived the plaintiff of both liberty and property without due process of law in violation of the Fourteenth Amendment and also constituted a violation of substantive due process (Counts 1, 4, 6, 9 and 14.). The plaintiff also alleges that her removal from School Board # 1 was in retaliation for positions that she took as a community board member and in violation of the First and Fourteenth Amendments (Counts 5 and 14). In addition, the plaintiff alleges that her removal was arbitrary and capricious and in violation of the Equal Protection Clause (Count 4), and that the defendants' removal of the plaintiff from her elected office constituted an unlawful "seizure" in violation of the Fourth and Fourteenth Amendments (Count 13).1
The plaintiff also raises various causes of action under state law, including a claim under the New York State Constitution (Count 2); claims for negligence (Counts 3 and 8); a claim asserting a "right to conciliation" under the New York State Constitution and New York State law (Count 7); a claim for defamation (Count 10); a claim for malicious abuse of civil process (Count 11); and a claim for intentional infliction of emotional distress (Count 12).
The defendants have now moved to dismiss all of the federal constitutional claims arguing, among other things, that the plaintiff cannot state a claim for relief under the relevant constitutional provisions, and that, in any event, the defendants are entitled to qualified immunity dismissing the federal claims against them in their personal capacity for the actions related to the investigation and removal of the plaintiff.2 The defendants also argue that the Court should not exercise supplemental jurisdiction over the state law claims, if the federal constitutional claims are dismissed.
On a motion to dismiss, the allegations in the Complaint are accepted as true. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). In deciding a motion to dismiss, all reasonable inferences are drawn in the plaintiffs favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, the defendants' motion to dismiss should only be granted if it appears that the plaintiff can prove no set of facts in support of their claims that would entitle them to relief. See Swierkiewicz v. Sorema, NA, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065.
Accordingly the following facts are alleged in the Complaint and are accepted as true for the purposes of this motion.
The plaintiff, Amy Velez, is a resident of the Lower East Side of Manhattan, and prior to her removal, was an elected member and treasurer of the New York City Community School District Board # 1 ("School Board # 1"). (Compl.¶ 9.) The plaintiff was elected to her position in May, 1999 for a term of three years, and her term was later extended by one year, by the state legislature (Compl.¶¶ 2, 22, 26.) School Board # 1 is charged with the responsibility of overseeing the delivery of educational services to elementary and middle school students who attend public schools within its geographic district. (Compl.¶ 25.) Nancy Ortiz, Jacob Goldman, and Joyce Early are other members of School Board # 1 and are known to have taken positions against and opposed positions taken by the plaintiff. (Compl.¶ 11.) The plaintiff voted against the appointment of Ortiz to the board, but Ortiz was eventually placed on the board by Chancellor Levy. (Compl.¶ 11.) The plaintiffs opposition to Ortiz and to the policies of Levy was widespread and well known. (Compl.¶¶ 166-68.)
On January 23, 2002 a working session of School Board # 1 was held at P.S. # 137. (Compl.¶ 27.) There had been contention at the meeting about Chancellor Levy's diversity policy regarding selection of students for a particular school under the control of School Board # 1. (Compl.¶ 29.) The plaintiff opposed the position taken by Chancellor Levy, and the plaintiffs alternative proposal was opposed by Ortiz, Goldman, and Early. (Id.) The Office of the Acting Superintendent was located down the hall from where the meeting of School Board # 1 was being held. (Compl.¶ 28.) After the meeting was over, Early accused the plaintiff of placing "sand" in front of the Acting Superintendent's door. (Compl.¶ 41.)
On January 24, 2002, Goldman, Ortiz and Early wrote a letter to Levy accusing the plaintiff of placing a foreign sand or powder-like substance near the door of the Acting Superintendent. (Compl. ¶ 45.) In this letter, Goldman, Ortiz and Early accused the plaintiff of, among other things, harassment and criminal and illegal conduct. (Compl.¶ 46.) The letter requested that Levy remove the plaintiff from School Board # 1. (Compl.¶ 46.) An article appeared in the New York Daily News on January 25, 2002 in which the circumstances surrounding the alleged incident were reported and referred to the sprinkling of "foul smelling" and "voodoo" powder by the plaintiff. (Compl.¶ 48.) The information for the article was allegedly provided by the defendants Goldman, Ortiz and Early, and the plaintiff contends that those defendants knew or should have known that the allegations and information provided for that article were baseless. (Compl.¶ 50.)
The accusations against the plaintiff were also repeated on the radio and on various television news programs on January 25, 2002, and the information for those news and television reports was also allegedly provided by Goldman, Ortiz and Early with the intention of harming the reputation of the plaintiff. (Compl.¶¶ 52-54.)
The Chancellor's Office of Special Investigations commenced an investigation into the allegations against Ms. Velez on January 28, 2002. (Compl.¶ 55.) Levy allegedly pursued personal and political ends in seeking to remove the plaintiff and in pursuing an investigation of apparently baseless allegations. (Compl.¶¶ 60-69.) The investigation, which was conducted by Thomas Hyland, Anthony DeLeo, and Robert Colon, resulted in a report dated February 11, 2002. (Compl.¶¶ 2, 71-72.) The report concluded that "the allegations that Amy Velez, a member of Community School Board # 1, placed a suspicious powder in front of [the Acting Superintendent's] door on January 23, 2003 is substantiated with corroboration from Nancy Ortiz." (Compl.¶ 150). The report was allegedly biased against the plaintiff as a result of the plaintiffs prior opposition to the policies of Levy and other members of School Board # 1; moreover, its conclusions regarding the plaintiffs conduct were allegedly baseless and speculative. (Compl.¶¶ 73-76, 134-35, 146-48, 151-57.) Ortiz was the only person interviewed who claimed to have seen the plaintiff place any powder or substance near the Acting Superintendent's door. (Compl.¶¶ 92-99, 140-41.) Goldman's and Early's knowledge of the incident was based solely on information received from Ortiz, although they both observed the substance in front of the door. (Compl.¶ 110.) The custodian described being asked by an unidentified female to clean up the substance, which he did, and the unidentified female then took a ziplock bag with some of the substance with her. (Compl.¶¶ 87-90.) Ortiz admitted to taking the ziplock bag with the substance, and, along with Goldman and Early, seeing that it was kept overnight. (Compl.¶¶ 98-99.) The parties agreed at argument that the substance was turned over to the investigators. The allegations made by Goldman, Ortiz and Early were allegedly baseless and speculative and not based on any credible evidence. (Compl.¶¶ 143-45, 173.)
In reliance on the report, Levy removed the plaintiff from her position on School Board # 1 on March 15, 2002. (Compl.¶¶ 151, 158.) In his decision to remove the plaintiff, Levy, without any basis, suggested that the plaintiffs actions were "criminal" in nature. (Compl.¶¶ 75-76, 192, 199-200, 207.) In removing the plaintiff, Levy failed to engage in a "conciliation" process. (Compl.¶¶ 176-82, 197, 204-05.) The plaintiff was allegedly stigmatized as a result of her removal, the allegations and the investigation into her conduct. (Compl.¶¶ 187-88.)
On March 27, 2002 the plaintiff appealed Levy's decision, and sought a stay of her removal and...
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Velez v. Levy
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