A.W. v. N.Y. Dep't of Educ.

• Decision Date: 16 February 2021
• Docket Number: 19-CV-7011 (MKB)
• Court: U.S. District Court — Eastern District of New York
• Parties: A.W., BY his father and legal guardian, E.W., Plaintiff, v. NEW YORK DEPARTMENT OF EDUCATION, and Aries Baluyot, in his individual and official capacity, Defendants.

519 F.Supp.3d 128

A.W., BY his father and legal guardian, E.W., Plaintiff,

v.NEW YORK DEPARTMENT OF EDUCATION, and Aries Baluyot, in his individual and official capacity, Defendants.

19-CV-7011 (MKB)

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

Signed February 16, 2021

Evan Brustein, Brustein Law PLLC, New York, NY, Joshua Tarrant-Windt, Brian L. Bromberg, Bromberg Law Office, P.C., Brooklyn, NY, for Plaintiff.

Copatrick Thomas, New York City Law Department, New York, NY, for Defendant New York Department of Education.

Douglas G. Rankin, Law Offices of Douglas G. Rankin and Associates, PC, Brooklyn, NY, for Defendant Aries Baluyot.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff A.W., by his father and legal guardian E.W., commenced the above-captioned action against Defendants the City of New York (the "City"), the New York Department of Education (the "DOE"), and Aries Baluyot on December 13, 2019. (Compl., Docket Entry No. 1.) Plaintiff subsequently amended his pleadings twice, ultimately asserting claims pursuant to 42 U.S.C. § 1983 against Baluyot for unlawful seizure, substantive due process violations, equal protection violations, and excessive force, as well as state law claims for assault, battery, and false imprisonment.¹ (Am. Compl., Docket Entry No. 16; Second Am. Compl. ("SAC"), Docket Entry No. 25.) Plaintiff also asserts that the DOE is liable based on respondeat superior.² (See SAC ¶¶ 5, 73–78.)

Defendant the DOE moves to dismiss Plaintiff's false imprisonment claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and to dismiss Plaintiff's respondeat superior claim for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.³ Defendant argues that the SAC should be dismissed as against the DOE for (1) lack of subject matter jurisdiction as to Plaintiff's false imprisonment claim for failure to file a sufficient notice of claim, (2) failure to state a claim for respondeat superior liability because Baluyot's actions were not taken in the scope of his employment, and (3) failure to state a claim for declaratory relief because Plaintiff does not face a prospective injury. (Def.’s Mem.) For the reasons set forth below, the Court grants Defendant's motion in part and denies it in part.

I. Background

The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order.

Plaintiff has a developmental disability, an intelligence quotient ("IQ") of 72, and has been diagnosed with autism

. (SAC ¶ 16.) Plaintiff's disability "limits his ability to communicate." (Id. ¶ 34.) Plaintiff's father, E.W., has legal guardianship over him pursuant to Article 81 of the New York Mental Hygiene Law. (Id. ¶ 18.) During the period at issue, Plaintiff attended P.S. 721K, a New York City public school "dedicated to educating students with developmental disabilities." (Id. ¶ 19.) At P.S. 721K, school employees were required to be "hands-on in responding to classroom disruptions," including using "physical force to restrain disruptive students" and separating disruptive students from the rest of students. (Id. ¶ 21.) As a result of his disability, Plaintiff "suffers from behavioral problems that cause him to act disruptively in class," which "occasionally requires a school employee to restrain him and separate him from other students." (Id. ¶ 17.) Because his school serves other students with disabilities, Plaintiff was not the only student with behavioral problems "that required the use of physical restraint and separation." (Id. ¶ 20.)

During the period at issue, Baluyot was employed with P.S. 721K as a paraprofessional, providing "educational assistance" to teachers and students at the school. ( Id. ¶ 22.) Baluyot had the authority to "take students out of class and be alone with students" as well as to "use physical force" with disruptive or noncompliant students. (Id. ¶ 23.)

On December 17 and December 18, 2018, at approximately 10:00 AM or 11:00 AM each day, Baluyot pulled Plaintiff out of class and took him to the school basement, which is "outside the view of any security cameras or other school personnel." (Id. ¶ 27.) Plaintiff contends that in the basement, Baluyot beat Plaintiff multiple times with a stick or ruler. (Id. ¶ 28.) Plaintiff was aware he was "confined and unable to leave the basement," and he did not think he could disobey Baluyot because Baluyot was a paraprofessional. (Id. ¶¶ 29–31.) Baluyot's attacks left "large and clearly visible marks along [Plaintiff's] left hip and thigh," which took several weeks to heal and caused Plaintiff "substantial pain." (Id. ¶ 32.) Plaintiff "did not take any action that would justify Baluyot's beating." (Id. ¶ 33.) Plaintiff alleges that Baluyot attacked him because Baluyot knew that Plaintiff has limited ability to communicate and "knew that [he] was vulnerable." (Id. ¶ 34.)

Plaintiff told his father that Baluyot touched him, but his father did not realize "the severity of what had happened" until December 20, 2018, when he "noticed significant bruising on [Plaintiff's] left leg." (Id. ¶ 35.) Plaintiff told his father that Baluyot had beaten him by hitting him with a stick or ruler multiple times that Monday and Tuesday. (Id. ¶ 36.) On the morning of December 21, 2018, Plaintiff's father complained to Barbara Tremblay, the principal of P.S. 721K, about Baluyot's attack on Plaintiff. (Id. ¶ 37.) Tremblay promised to investigate and to return Plaintiff's father's call that afternoon, but she did not. (Id. ¶ 38.) Plaintiff's father decided to file a complaint with the New York Police Department (the "NYPD"). (Id. ¶¶ 38–39.) Upon the NYPD's advice, Plaintiff's father returned to P.S. 721K to call in his complaint from the school. (Id. ¶ 40.) The NYPD arrived at P.S. 721K, interviewed Plaintiff and his father, and presented Plaintiff with "a series of photos of school employees." (Id. ¶¶ 41–42.) Police officers arrested Baluyot at the school. (Id. ¶ 43.) The District Attorney's Office "ultimately provided Baluyot with an adjournment in contemplation of dismissal, wherein the charges against Baluyot relating to this incident would be dismissed so long as he did not re-offend within six months." (Id. ¶ 44.) Baluyot no longer works at P.S. 721K but is still employed by the DOE. (Id. ¶ 45.) Plaintiff contends that his mental health continues to be negatively affected by the incident as he is "still fixated on the attacks and repeatedly mentions it to his father and during appointments with medical professionals." (Id. ¶ 46.)

On March 7, 2019, Plaintiff filed a notice of claim (the "Notice"), with the City of New York. (Id. ¶ 15; Notice of Claim, annexed to Decl. of Copatrick Thomas as Ex. A, Docket Entry No. 32-1.)⁴ The Notice identified sixteen claims, exclusive of false imprisonment. (Notice of Claim 2.) Plaintiff states in the Notice that Baluyot hit Plaintiff "multiple times with a wooden stick in the hip and thigh areas, leaving large and clearly visible marks" on or about "December 17, 2018 and December 18, 2018, at 10–11 [AM], approximately, in or about" P.S. 721K. (Id. ) Plaintiff further stated that the hitting was humiliating and caused substantial pain. (Id. )

On December 13, 2019, Plaintiff filed this suit in federal court. (Compl.; SAC.) Plaintiff seeks a declaration that Defendants’ conduct violates the law, compensatory and punitive damages, attorneys’ fees and other costs relating to this action, and any other relief this Court deems just and proper. (SAC 11–12.)

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court "lacks the statutory or constitutional power to adjudicate it." Huntress v. United States , 810 F. App'x 74, 75 (2d Cir. 2020) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ); Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L. , 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova , 201 F.3d at 113 ); Shabaj v. Holder , 718 F.3d 48, 50 (2d Cir. 2013) (per curiam) (quoting Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ). " ‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first quoting Nat. Res. Def. Council v. Johnson , 461 F.3d 164, 171 (2d Cir. 2006) ; and then quoting APWU v. Potter , 343 F.3d 619, 623 (2d Cir. 2003) ), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Ultimately, "the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova , 201 F.3d at 113 ); see also Suarez v. Mosaic Sales Sols. US Operating Co. , 720 F. App'x 52, 53 (2d Cir. 2018) (citing Morrison , 547 F.3d at 170 ); Clayton v. United States , No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020) (quoting Tandon , 752 F.3d at 243 ); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon , 369 F. Supp. 3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon , 752 F.3d at 243 ).

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Kim v. Kimm , 884 F.3d 98, 103 (2d Cir. 2018) (quoting Chambers v. Time Warner Inc. , 282 F.3d 147, 152 (2d Cir. 2002) ); see also Tsirelman v....