Calicchio v. Sachem Central School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MATTHEW CALICCHIO, SANDRA CALICCHIO,

and MICHAEL CALICCHIO,

Plaintiffs,

MEMORANDUM & ORDER

-against- 14-CV-5958 (DRH) (SIL)

SACHEM CENTRAL SCHOOL DISTRICT, LISA

JOHNSON, JOHN DOLAN, ANDREW LARSEN,

JACK RENDA, KAREN MOTT, and JOHN DOES

number 1-15.1

Defendants.

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APPEARANCES:

SCOTT LOCKWOOD, ESQ.

Attorney for Plaintiffs

1476 Deer Park Ave.

Suite 3

North Babylon, New York 11703

DEVITT SPELLMAN BARRETT, LLP

Attorneys for Defendants Sachem Central School District,

Lisa Johnson, John Dolan, Andrew Larsen, Jack Renda,

and Karen Mott

50 Route 111

Smithtown, New York 11787

By: Felicia Gross, Esq.

HURLEY, Senior District Judge:

Plaintiffs Matthew Calicchio (“Matthew” or “Plaintiff”), Sandra Calicchio

(“Sandra”) and Michael Calicchio (“Michael”) (Sandra and Michael are jointly

1 By Order dated May 5, 2016 , the Court granted the motion of the County of Suffolk and the

County of Suffolk Police Department to dismiss the claim against them and, accordingly, the caption

is hereby amended to reflect that dismissal.

referred to as “Parents”) commenced this action against defendants Sachem Central

School District (the “District”), Lisa Johnson (“Johnson”), John Dolan (“Dolan”),

Andrew Larsen (“Larsen”), Jack Renda (“Renda”), Karen Mott (“Mott”) (Johnson,

Dolan, Larsen, Renda, and Mott are collectively referred to as “Individual

Defendants”) ( District and Individual Defendants together “Defendants”) asserting

various federal and state claims, some of which were previously dismissed.2

Currently before the Court is Defendants’ motion for summary judgment on the

remaining claims. For the reasons set forth below, the motion is granted in part and

denied in part.

BACKGROUND

I. The Nature of Plaintiffs’ Claims

A. The Allegations of the Amended Complaint

Matthew alleges that during the years 2010 through 2013, while he was a

student in the district, the Individual Defendants “required” him to perform work

for the District consisting of “working on the computer system, the computer

network and security for computers. (Amended Complaint (“AC”) at ¶¶ 20, 22-23.)

Matthew “was repeatedly removed from his classroom learning environment and

from his lunch period and was forced [to] perform” this “uncompensated work.”

Matthew was told by Assistant Principal Larson “that if he did not do the work they

2 By Order dated May 5, 2016, the Court dismissed the following claims in the against the District

Defendants: (1) Thirteenth Amendment involuntary servitude (first cause of action); (2) malicious

prosecution (fifth and seventh causes of action); (3) intentional infliction of emotional distress as

against the District only (eighth cause of action); and (4) negligent infliction of emotional distress

(ninth cause of action).

wanted him to do on the computers that he would have him arrested by the FBI,

and the FBI would raid his house.” Principal Dolan told Matthew that if he did not

do the work “they would have him expelled from school.” When Matthew stopped

working on the District computer, “the Defendants had him expelled from school

and had him arrested.” (Id. at ¶¶ 24-28.) Matthew was forced to perform this work

without his parents’ permission and in fact Matthew was ordered by the Individual

Defendants not to tell his parents about this “forced” work. (Id. at ¶¶ 106-07, 112-

13.) In November 2013, Matthew who was born on August 10, 1996 and “eligible for

compulsory education,” was expelled from the District without notice and an

opportunity to be heard and was not “afforded an opportunity for a hearing on the

continued eligibility of himself for attendance and instruction.” (Id. at ¶¶ 34, 55-62.)

Further, the District caused a knowingly false criminal complaint to be lodged

resulting in Matthew being “arrested and charged with the crimes of Computer

Trespass and Unlawful Duplication of Computer Material.” and reported to various

news sources that Matthew “had ‘illegally accessed student records,’ had ‘hacked

into’ the computer system, and committed an act of ‘computer trespass.’” (Id. at ¶

65-67, 78.)

B. The Causes of Action Which Remain

The following claims currently remain pending against Defendants: (1) the

second cause of action for violation of the oppressive child labor provision of Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 203(1); (2) the third cause of action for

violation of the FLSA’s minimum wage provision, 29 U.S.C. § 206; (3) the fourth

cause of action alleging violation of New York State’s compulsory education law

and the Due Process Clause of the Fourteenth Amendment (Monell claim); (4) the

sixth cause of action for slander per se; (5) the seventh cause of action for false

arrest (6) the eighth cause of action for intentional infliction of emotional distress

against the Individual Defendants only; (7) the tenth cause of action for unlawful

detention; (8) the eleventh cause of action for violation of Article IV of the New

York State Labor Law; (9) the thirteen cause of action for Michael’s “loss of parental

liberty;” and (10) the fourteenth cause of action for Sandra’s “loss of parental

liberty.”

II. Uncontested Material Facts Presented on the Instant Motion

The following facts are taken from the parties’ 56.1 statements and are

undisputed unless otherwise noted.

A. The Players

Matthew, who was born in August 1996 was at student at Sachem North

High School (“North”) in the District from at least 2010 through 2013. His parents

are Sandra and Michael; they separated in 2008. (Pls.’ 56.1 Resp. ¶¶ 9-12.)

Dolan was employed by the District as principal at North from 2010 to 2015.

Johnson and Larsen were assistant principals at North during the relevant time

period; Renda was the administrative assistant for instructional technology at

North and Mott was a communication aide in the technology department. (Id. at ¶¶

4-8.)

B. Matthew’s Attendance and Disciplinary Record

1. The 2010-2011 School Year

Beginning in the 2010-2011 school year, when he was in ninth grade,

Matthew had attendance issues which he claims were related to a medical

condition, irritable bowel syndrome. The attendance issues continued throughout

that school year. (Id. at ¶¶ 14-16.)

In October 2010, Matthew’s business teacher alerted Larsen that he

suspected Matthew of accessing restricted information through the school’s

computers. The IT department confirmed that Matthew accessed, using the school’s

computer, areas the District deemed restricted by comparing Matthew’s student log-

in with the login of the unauthorized user. As a result, Matthew was issued a two-

day in school suspension, which suspension Matthew claims was later rescinded by

the school. Larsen sent a letter to Sandra and left her a message about the

suspension but received no call back and no meeting took place. In November 2010,

Renda alerted Dolan, Larsen, and Mott via email that Matthew was again flagged

by the IT Department alerting software based on his trying to access areas the

District deemed restricted. Mott responded that “Matt has been working with me

and Rob to see what areas he still has access to . . . of course he was working in our

presence if he is still doing this on his own.” The District’s IT department placed a

block on Matthew’s account, which was subsequently removed in May 2011. (Id. at

¶¶ 18-24.)

In the fall of 2010 Matthew asked Larsen to write him a letter of

recommendation to assist him in getting an outside job. In response, Larsen wrote a

letter “to whom it may concern” stating as follows:

I am the Assistant Principal at Sachem High School North and have

had the pleasure of working with Matthew Calicchio this year.

Matthew is a bright young man who has extraordinary computer skills

for his age. Matthew has been an asset to our IT department and is

learning the importance of working with a team. Matthew has been

able to pinpoint areas of weakness in our local area network and offer

solutions to the various problems he has come across. What I am most

impressed with is Matthew’s ability to keep all information

confidential, which proves he is a trustworthy individual. Also, he

absorbs any computer related information at a rate approximately

twice the rate of his fellow classmates. Matthew has extensive skills in

Microsoft Office and has the ability to learn new programs upon

request. These qualities, among many others, will make Matthew an

excellent employee with your company.

Thank you for considering Matthew as an employee with your

company and please feel free to contact me at your convenience.

(Id. at ¶ 27; Ex. H to Lockwood Decl.)

2. The 2011-2012 School Year

Matthew continued to have attendance issues during tenth grade, the 2011-

2012 school year. The dean of students sent letters to his parents on October 31,

2011, November 2, 2011, November 16, 2011, December 16, 2011, March 13, 2012

and March 30, 2012 stating that Matthew would be denied credit for his courses

because of absenteeism and that his graduation might be jeopardized. (Pls.’ 56.1

Resp. ¶¶ 37-38.)

3. The 2012-2013 School Year

Matthew’s attendance problem did not abate in the 2012-2013 school year.

He was not on track to graduate, as he only had enough credits to be considered a

tenth grader. On October 25, 2012, the Dean of Students sent Sandra two letters

stating that Matthew was being denied credit for all his classes. On January 10,

2013, Johnson sent Matthew’s parents a letter advising them of a phone conference

to discuss Matthew’s academic performance. (Id. at ¶ 50.)

Matthew was given one-day, in-school suspensions on September 28, 2012,

October 26, 2012, November 27, 2012, April 10, 2013, and April 11, 2013 for cutting

class, speaking inappropriately to a staff member, insubordination, cutting class

and insubordination and being disruptive, respectively. A letter was sent on

November 21, 2012 to Matthew’s parents explaining that the school had made

several phone calls to their home in unsuccessful attempts to reach them and

requesting that the parents contact the school as soon as possible. On December 21,

2012 Dolan sent a certified letter to Matthew’s parents requesting they contact the

school regarding Matthew’s behavior. (Id. at ¶¶ 44-49, 51-52.)

4. The 2013-2014 School Year

In the 2013-2014 school year, which should have his senior year, Matthew

continued to have attendance issues and was not on track to graduate as he only

had enough credits to be considered a tenth grader. According to the District,

Matthew was absent for twenty (20) consecutive days in September and October

2013, a fact that Matthew disputes. In September 2013, the assistant principal who

handled attendance and discipline issues for the senior class scheduled an in-person

conference with Matthew and his mother to be held on September 25, 2013. Sandra

failed to appear for the meeting. (Id. at ¶¶ 61, 62, 64.)

On October 22, 2013, that assistant principle, together with Dolan, sent a

letter to Sandra stating: “In view of the fact that your son, Matthew Calicchio, has

been absent from school 20 consecutive days since the start of school, I have no

recourse but to remove Matthew from the rolls of Sachem High School North.” (Id.

at ¶ 66.)

Matthew did not attend class in the District after being dropped from the

rolls. In 2013, he received his General Education Development (GED) certificate

from Suffolk Community College. (Id. at 68-69.)

C. Matthew and the District’s Computers

The facts surround Matthew and the District’s computers are disputed. Set

forth below is the District’s version, following which is Matthew’s.

1. According to the District

Around the time of his suspension in November 2010, Matthew told Larsen

that he had information he would like passed onto the IT Department regarding the

security of the school’s computers and requested to meet with the IT Department

multiple times. Specifically, Matthew wanted to “help tighten up security” and “help

[the IT Department] understand how he was doing things.” IT Department staff

member Mott met with Matthew in the main office at North once or twice. Matthew

was introduced to Mott by Dolan who said “[t]his Matt. He has some computer

concerns he would like to make you aware of.” Since Matthew had reported there

were “holes in the security system”, Dolan “asked him to kind of prove [it] to us[]

and he never seemed to be able to prove anything.” Matthew sat with computer

techs and they would ask Matthew to show them what he was referencing.

According to Dolan, on a regular basis Matthew would claim things that were never

substantiated. (Defs.’ 56.1 ¶¶ 29-36.)

During the 2012-13 school year, Matthew continued to go to Dolan’s office to

express concerns with the schools’ (computer) security system. Mott asked Matthew

to put his concerns on paper and he did so. She then scanned the paperwork and

sent it to the IT Department. Thereafter Matthew would “occasionally pop[] into the

office with concerns.” For example, he came to the IT Department and informed

them that he could see the East3 student folders. In or around November 13, 2012,

members of the IT department had a 20-minute meeting with Matthew during

which Mott set him up on a computer terminal with the IT Department remoting

into that computer so that they were able to watch what Matthew was doing. At no

time was Matthew authorized to work with the IT Department. (Id. at ¶¶ 53-60.)

2. According to Matthew

According to Matthew’s 50-h testimony, his suspension in the Fall of 2010

(while he was in ninth grade) was rescinded after it was determined that he did not

do anything wrong. Following this, Matthew was asked, on numerous occasions at

the request of administrators, to prepare documents relating to the district’s

network security. These requests were made by in the 2010-2011, 2011-2012, and

2012-2013 school years by Larsen, Dolan and Johnson. (June 24, 2014 Exam of

Matthew (“50-h Exam.”) at 18-21.)

3 East is another high school in the District.

As a result, the District discovered “that their network was vulnerable,” and

Matthew was told “to write an assessment of these vulnerabilities.” In the 2010-

2011 school year it was Dolan and Larsen who told him to do this “plenty of times.”

When this would occur, Matthew would be asked to leave his regular class and come

to the office. He would then be advised to go to the school's technical department

where he would be placed in touch with either Renda or Mott. He was told to "assist

them." He estimated this occurred approximately twenty or thirty times the first

year. This did not occur solely in the ninth grade. He was taken out of classes to do

this work, "whenever they needed me. If, you know, Ms. Mott was available during

fourth period, they would call me out of math or whatever it was.” He would be

paged over the intercom and phone units, he would be ordered to report during a

certain period, or to get a pass from a teacher. He would then work on the computer

system with the IT Department. This continued during tenth and eleventh grades.

He spent "multiple hours" doing this (Id. 24- 33).

While he was doing this work, the IT Department would, at times, allow him

to use the administrator credentials to perform these tasks. Indeed, Matthew was

even given an administrator account at one point. He and the IT Department were

working towards solving the problems with the computers. They were able to fix

most of the problems. One of the significant concerns was the fact that the school

was unable to protect confidential student records. (Id. at 51, 69-71).

Matthew would give reports to the administrators, usually either Larsen or

Mott. He gave many of these reports to them. Although there were a number of

them, only one report appears to have survived and provides an example the work

Matthew was doing with the IT Department. (Id. at 34-50, 69.) These reports

remained in the possession of the school district (March 17, 2017 Dep. of Matthew

at 53-57.)

According to Matthew, the work he was being forced to do "had often

interfered with [his] schoolwork which made it very hard to - to complete the

activities that were assigned to [him]." He advised Dolan that it was affecting his

schoolwork. He noted on several occasions to Mott that he did not wish to do this.

He also complained about this to both Dolan and Larsen. (June 24, 2014 Dep. of

Matthew at 52-54, 59, 64-65.)

When he was told to attend a meeting with the IT Department, he was

advised that he would be considered "truant" if he did not attend. He was further

advised that if he did not comply, it would be a violation of the student handbook for

willfully disobeying an administrator and he could be suspended. He did not receive

any credit for this work, and he was not aware of any other students being forced to

do this work. In addition, Mott and Dolan told him he was not allowed to leave until

the work was done, not even for lunch or to go to the restroom. (Id. at 54; 55-56, 57,

93-96).

3. The Criminal Proceedings

On November 8, 2013, the District discovered that a large amount of student

records had been expropriated from its proprietary computer system and posted on

a public website. The student records posted contained medical histories,

transcripts, report card grades, attendance records, and disciplinary records. On

November 9, 2013, District staff made a written complaint to the FBI. Thereafter,

IT Department staff cooperated with the authorities, including the Suffolk County

Police Department.

On November 22, 2013, Matthew was arrested by the Suffolk County Police

Department and indicted on two counts of Computer Trespass (Class E Felony) in

violation of New York Penal Law Section 156.10(1) and one count of Unlawful

Duplication of Computer Related Material in the First Degree (Class E Felony) in

violation of New York Penal Law Section 156.30(2). Matthew signed a waiver of

rights form and gave a written statement that included the following:

In Feb[ruary] 2011[,] I was at Sachem North. It was my first year. I

was on a school computer and noticed I could open folders on the school

system that were supposed to be restricted. I notified my school

administration who put me in contact with IT people. I showed them a

short cut to a directory that got me to higher directory without

privileges. They couldn’t fix it so it stayed that way over a period of

time. From Feb[ruary] 2011 thru [sic] the school year last year[,] I

would use the school computers at Sachem North to test their system

and sometimes find open information on various system folders that

contained all kinds of stuff including student information. Sometime in

2011 I began penetration testing and found some small log files and

transferred [them] out over the internet to a file share site. I don't

remember exactly which one. Sometime at the end of the school year in

2011 or the beginning 2012 school years I had been testing the system

for vulnerabilities and found some data – IES. It's all over the place. I

downloaded it to a USB. A while later I noticed there was student data

in there. This goes on for all of the 2012-2013 and I would sweep up

data and sometimes get student data accidently. I would do that

occasionally and the last time I did it was in June 2013. About a month

after I was looking at what I got from the penetration and I noticed the

files that I got contained serious information. Some of it had social

security numbers, some medical stuff, DTS, lunch list, the free lunch

list, some student pictures, addresses that were never posted. In July

2013 I wanted to make sure the school followed proper policy and

offered credit protection & followed all proper procedures referencing

my personal information. There was a site called Sachemunspun.com

which is a community board. A place where people can share

information. So out of concern and to point out that peoples’ personal

information could be comprised I posted a list of names, just names,

that’s all. I also sent the top administrator an email link to [that] list

just to show people should be concerned. In August I posted or shared

more of the information I had. [In] November 2013[,] I started

establishing web sites at a website call iapps.com which is primarily a

blog site. I established a site sachem.iapps.com in the domain name

and on there I would post link to files, images, [unintelligible] files that

had data in it. Mainly images, some censored. . . . Det[ective] Forrester

showed me some of the printouts obtained from Sachemiapp.com and

these are the ones I had accessed at the school. . . . .

Ex. Q to Gross Declar. at DEF 10000005-10000008.

On November 5, 2014 Matthew pled guilty to one count of unlawful

duplication of computer related material in the first degree (Class E Felony) in

violation of New York Penal Law § 156.30(2) with the understanding that if he

completed probation, the charge would be reduced to unlawful duplication of

computer related material in the second degree, a Class B misdemeanor. Between

October 2014 and November 2015 Matthew successfully completed probation. On

November 12, 2015, at a second plea hearing and sentencing, the court vacated

Matthew’s prior guilty plea and Matthew pled guilty to the Class B misdemeanor of

unlawful duplication of computer related material in the second degree. He was

sentenced to a mandatory surcharge of $200 and a conditional discharge.

DISCUSSION

I. Summary Judgment Standard

Summary judgment, pursuant to Rule 56, is appropriate only where the

movant “shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

relevant governing law in each case determines which facts are material; "[o]nly

disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When making this determination, a court

must view all facts “in the light most favorable” to the non-movant, Tolan v. Cotton,

134 S. Ct. 1861, 1866 (2014), and “resolve all ambiguities and draw all permissible

factual inferences in favor of the [non-movant],” Johnson v. Killian, 680 F.3d 234,

236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).

Thus, “[s]ummary judgment is appropriate [only] where the record taken as a whole

could not lead a rational trier of fact to find for the [non-movant].” Id. (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))

(internal quotation marks omitted).

To defeat a summary judgment motion properly supported by affidavits,

depositions, or other documentation, the non-movant must offer similar materials

setting forth specific facts demonstrating that there is a genuine dispute of material

fact to be tried. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The non-movant

must present more than a "scintilla of evidence," Fabrikant v. French, 691 F.3d 193,

205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt

as to the material facts," Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)

(quoting Matsushita, 475 U.S. at 586-87), and “may not rely on conclusory

allegations or unsubstantiated speculation,” Id. (quoting FDIC v. Great Am. Ins.

Co., 607 F.3d 288, 292 (2d Cir. 2010).

The district court considering a summary judgment motion must also be

"mindful . . . of the underlying standards and burdens of proof," Pickett v. RTS

Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252),

because the "evidentiary burdens that the respective parties will bear at trial guide

district courts in their determination[s] of summary judgment motions," Brady v.

Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the [non-movant]

will bear the burden of proof on an issue at trial, the moving party may satisfy its

burden by pointing to an absence of evidence to support an essential element of the

[non-movant’s] case.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014) (quoting Brady, 863 F.2d at 210-11) (internal quotation marks

omitted). Where a movant without the underlying burden of proof offers evidence

that the non-movant has failed to establish his claim, the burden shifts to the

non-movant to offer "persuasive evidence that his claim is not 'implausible.' "

Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587). “[A] complete failure of

proof concerning an essential element of the [non-movant’s] case necessarily renders

all other facts immaterial.” Crawford, 758 F.3d at 486 (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

II. Matthew’s FLSA Claims

In his second and third causes of action Matthew asserts violations of the

FLSA.

Defendants maintain that they are entitled to judgment on Matthew’s causes

of action under the FLSA, 29 U.S.C. §§ 203 and 206 as he has failed to present

evidence that he was an “employee” and his criminal conviction estops him from

claiming otherwise.

A. Whether Matthew was an Employee

Section 203(1) of the FLSA provides:

Oppressive child labor means a condition of employment under which

(1) any employee under the age of sixteen years is employed by an

employer (other than a parent or a person standing in place of a parent

employing his own child or a child in his custody under the age of

sixteen years in an occupation other than manufacturing or mining or

an occupation found by the Secretary of Labor to be particularly

hazardous for the employment of children between the ages of sixteen

and eighteen years or detrimental to their health or well-being) in any

occupation, or (2) any employee between the ages of sixteen and

eighteen years is employed by an employer in any occupation which

the Secretary of Labor shall find and by order declare to be

particularly hazardous for the employment of children between such

ages or detrimental to their health or well-being; but oppressive child

labor shall not be deemed to exist by virtue of the employment in any

occupation of any person with respect to whom the employer shall have

on file an unexpired certificate issued and held pursuant to regulations

of the Secretary of Labor certifying that such person is above the

oppressive child-labor age. The Secretary of Labor shall provide by

regulation or by order that the employment of employees between the

ages of fourteen and sixteen years in occupations other than

manufacturing and mining shall not be deemed to constitute

oppressive child labor if and to the extent that the Secretary of Labor

determines that such employment is confined to periods which will not

interfere with their schooling and to conditions which will not interfere

with their health and well-being.

29 U.S.C. § 203(l). Section 212(c) provides that “[n]o employer shall employ any

oppressive child labor in commerce or in the production of goods for commerce or in

any enterprise engaged in commerce or in the production of goods for commerce.”

Id. at §212(c).

With respect to minimum wage, the FLSA provides that

[e]very employer shall pay to each of his employees who in any

workweek is engaged in commerce or in the production of goods for

commerce, wages at the following rates: (1) except as otherwise

provided in this section, not less than—(A) $5.85 an hour, beginning on

the 60th day after May 25, 2007; (B) $6.55 an hour, beginning 12

months after that 60th day; and (C) $7.25 an hour, beginning 24

months after that 60th day.

29 U.S.C. § 206(a)(1).

Both statutes apply only to “employees.” The FLSA unhelpfully defines

“employee” as an “individual employed by an employer.” 29 U.S.C. § 203(e)(1).

“Employ” is defined as “to suffer or permit to work.” Id. § 203(g). “The standard for

‘employee’ is broad, but the Supreme Court has long recognized that not every

individual who performs a service for an employer qualifies as an ‘employee’ under

the FLSA. ‘[E]mployee’ status depends upon the ‘economic reality’ of the

relationship between the putative employer and employee.” Wang v. Hearst

Corporation, 877 F.3d 69, 72 (2d Cir. 2017) (citing Walling v. Portland Terminal

Co., 330 U.S. 148, 149-53, (1947) and Glatt v. Fox Searchlight Pictures, Inc., 811

F.3d 528, 534, 536 (2d Cir. 2016)).

Defendants maintain the claim that Matthew was an employee must be

dismissed because “there was no employment agreement between Matthew and the

District;” “[t]here is no evidence other than Matthew’s bare assertion[s], that he was

an ‘employee’ of the District,” “was formally hired, had set hours, or had an official

supervisor.” Also, as the “District retained an outside company to perform network

security . . . it derived no benefit from the alleged ‘work’ performed by Plaintiff.”

(Defs.’ Mem. in Supp. at 13.) However, as Plaintiff points out, there is no

requirement of an employment agreement, set hours, official supervisor, or having

been formally hired.

Similarly, Defendants reliance on Solis v. Laurelbrook Sanitarium & Sch.,

Inc., 642 F.3d 518, 524 is unavailing as there is no evidence that the work Matthew

claims to have performed was part of a training or learning program.

Here, given that the parties’ versions of the facts are diametrically opposed, it

is not appropriate for this Court to rule as a matter of law on the issue of whether

Matthew was an employee of the District. See generally, Wang, 877 F.3d at 76 (a

district court may rule on the issue of “employee” if it can weigh the Glatt factors on

the basis of facts that are not in dispute). According to Defendants, Matthew

“volunteered” his computer expertise. Matthew, on the other hand, contends he was

required to work on the District’s computers. Which version prevails, must await

trial.

B. Whether Matthew is Estopped from Claiming He was an

Employee By Virtue of the Criminal Proceedings

Defendants’ argument regarding the estoppel effect of the criminal

proceedings is twofold. First, in his written statement he admitted that “he used the

school’s computers to further his own interest in exposing student data.” Second,

“the District’s permission or compulsion by the District would have been a defense

to the crime to which Matthew pled guilty.” Neither argument is persuasive.

While Matthew was charged with two counts of Computer Trespass (Class E

Felony) in violation of New York Penal Law Section 156.10(1), he did not plead

guilty to those counts. Rather, both his original (vacated) and later plea were to

“Unlawful Duplication of Computer Related Material” which requires that the

charged individual “having no right to do so,” “copies, reproduces or duplicates in

any manner computer material . . . .” In other words, it is the copying or

duplication without right that forms the basis for the crime. Contrary to

Defendants’ intimation otherwise, it does not require one to have accessed the

computer material without the right to do so.4 Therefore, the District’s permission

to access the materials would not provide a defense to the count of conviction.

Turning to Matthew’s written statement, it does not provide a basis for

estoppel. Indeed, Matthew stated therein that he used the school’s computers to test

their system, which is consistent with his claims in this action. While a jury may

ultimately determine that his failure to explicitly state that he used the District’s

computers at their insistence undermines his claim, it does not warrant summary

judgment in the District’s favor on estoppel grounds.

III. Matthew’s Due Process Claim

Matthew’s fourth cause of action asserts a violation of his Due Process rights

under the Fourteenth Amendment when it expelled him in November 2013 without

4 "’[U]unauthorized use of a computer’ [Penal Law § 156.05] and ‘computer trespass’ [Penal Law §

156.10] have common elements, one of which is that the operator of the computer act ‘without

authorization.’ An operator who uses a computer to commit a crime is not by that fact alone deemed

to have acted ‘without authorization.’ Thus, the operator of a computer who accesses the computer

with permission, but then uses it to commit a crime is not criminally liable for these crimes. N.Y

Penal Law § 156.00 McKinney’s Supplemental Practice Commentaries (citing People v. Golb, 23

N.Y.3d 455, 991 N.Y.S.2d 792, 15 N.E.3d 805 (2014)).

his first being afforded sufficient notice and an opportunity to be heard based on his

continued eligibility for attendance and instruction under New York’s compulsory

education law.

To prevail on a Due Process claim, a plaintiff must demonstrate that he “has

a property interest, created by state law, in . . . the benefit that was removed.”

Bernheim v. Litt, 79 F.3d 318, 322 (2d Cir. 1996). See Town of Castle Rock v.

Gonzales, 545 U.S. 748, 756 (2005); Green v. Bauvi, 46 F.3d 189, 195 (2d Cir. 1995).

New York’s education laws, provide in pertinent part, that “[a] person over

five and under twenty-one years of age who has not received a high school diploma

is entitled to attend the public schools maintained in the district in which such

person resides without payment of tuition.” N.Y. Educ. Law § 3202(1). The Second

Circuit has recognized that section 3202(1) of the New York Education Law “creates

a property right in a free public education . . . that may not be taken away without

the minimum procedures required by the Due Process Clause.” Kajoshaj v. New

York City Dept. of Educ., 543 F. App’x 11, 16 (2d Cir. 2013) (citing Handberry v.

Thompson, 446 F.3d 335, 353 (2d Cir. 2006) and Goss v. Lopez, 419 U.S. 565, 574

(1975)). See Mitchell C. v. Bd. of Educ., 67 A.D.2d 284, 288, 414 N.Y.S.2d 923, 926

(2d Dept. 1979) (“[W]here a State or subdivision thereof undertakes to provide a free

education to all students, it must recognize an individual student’s legitimate

entitlement to a public education as a property interest protected by the due process

clause . . . .”). The extent of that property interest, however, is circumscribed by

other subsections of Education Law § 3202. See Handberry, 446 F.3d at 353

(holding that section 3202(7), which governs youths who are incarcerated, does not

give rise to the legitimate expectation of the same type of educational benefit that

section 3202(1) does).

The statutory procedures for dis-enrolling a student under New York State

law are set forth in Section 3202(1-a), which provides in pertinent part:

No pupil over the compulsory attendance age in his or her school

district shall be dropped from enrollment unless he or she has been

absent twenty consecutive school days and the following procedure is

complied with: The principal or superintendent shall schedule and

notify, in writing and at the last known address, both the student and

the person in parental relation to the student of an informal

conference. At the conference the principal or superintendent shall

determine both the reasons for the pupil's absence and whether

reasonable changes in the pupil's educational program would

encourage and facilitate his or her re-entry or continuance of study.

The pupil and the person in parental relation shall be informed orally

and in writing of the pupil's right to re-enroll at any time in the public

school maintained in the district where he or she resides, if otherwise

qualified under this section. If the pupil and the person in parental

relationship fail, after reasonable notice, to attend the informal

conference, the pupil may be dropped from enrollment provided that he

or she and the person in parental relation are notified in writing of the

right to re-enter at any time, if otherwise qualified under this section.

N.Y. Educ. Law § 3202(1-a).

Pointing to the lack of evidence that the requirements of § 3202(1-a)

were complied with, Matthew argues that the Defendant’s motion must be

denied. Defendants, on the other hand, maintain that the Due Process clause

requires only notice and an opportunity to be heard and does not necessarily

require compliance with state procedures and that the notice and opportunity

to heard provided by the District was sufficient to satisfy due process.

Defendants are correct that the violation of state law does not in itself violate

the Constitution because “federal constitutional standards rather than state law

define the requirements of due process.” Holland v. City of New York,197 F. Supp.

3d 529, 529 (S.D.N.Y. 2016) (internal quotation marks omitted); see Rivera v.

Illinois, 556 U.S. 148, 158 (2009) (The Due Process Clause . . . safeguards not the

meticulous observance of state procedural prescriptions, but the ‘fundamental

elements of fairness . . . . “) (internal quotation marks omitted). However, in this

case there is no evidence that Matthew himself was provided with any type of notice

and opportunity to be heard before he was disenrolled.

With respect to notice to his parents, Defendants argues that “in a letter

dated October 22, 2013 from Principal Dolan and Assistant Principal Miller, the

District Defendants informed his parents that due to his having 20 consecutive

absences, Matthew would be removed from the rolls. He was given notice of the

charges (absenteeism) and the consequences (disenrollment). Such a letter did not

say that Matthew had already been removed from the rolls.” (Defs.’ Reply at 11.)

With respect to an opportunity to be heard, Defendants rely upon the attempts to

set up a meeting with his parents in the prior year and an affidavit of Miller that he

called Sandra and scheduled a meeting with her.

With respect to the October 22, 2013 letter, it stated that there was “no

recourse but to remove Matthew from the rolls of Sachem High School North.”

It did not advise that Matthew or parents had an opportunity either to dispute the

number of absences or to provide the reasons for the absences. According to Miller’s

affidavit, the conference scheduled for September 2013 was to discuss “Matthew’s

excessive absences and what might be done to get Matthew to comply with the

school’s attendance policy.” (DE 66-3 ¶ 5.) It does not mention the possibility of

disenrollment should Matthew continue to be absent. Finally, the letters sent in the

prior year refer to Matthew not graduating and do not reference the possibility of

his disenrollment. In other words, based on the material presented to the Court,

Defendants are not entitled to summary judgment on the Due Process claim.

The District further argues that it there is no evidence to support a claim

under Monell against it. It is that argument to which the Court now turns.

In order to bring a § 1983 claim against a municipal defendant, a plaintiff

must establish both a violation of his constitutional rights and that the violation

was motivated by a municipal custom or policy. See Monell v. N.Y. City Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978); see Coon v. Town of Springfield, Vt., 404 F.3d

683, 686 (2d Cir. 2005) (“[I]t is when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the injury that the government as an entity is

responsible under § 1983.”); Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir.

2004); see also Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (noting that

“the mere invocation of the ‘pattern’ or ‘plan’ will not suffice”) (citations omitted);

Middleton v. City of New York, 2006 U.S. Dist. Lexis 44320 (E.D.N.Y. 2006)

(allegations of an isolated incident of police misconduct will not suffice). A

municipality cannot be held liable under Section 1983 on a respondeat superior

theory. Monell, 436 U.S. at 691.

“To show a policy, custom, or practice, a plaintiff need not identify an express

rule or regulation.” Patterson, 375 F.3d at 226. “Rather, the existence of a municipal

policy or custom may be plead in any of four ways. A plaintiff may allege “(1) the

existence of a formal policy which is officially endorsed by the municipality; (2)

actions taken or decisions made by municipal officials with final decision making

authority, which caused the alleged violation of plaintiff’s civil rights; (3) a practice

so persistent and widespread that it constitutes a custom of which constructive

knowledge can be implied on the part of policymaking officials; or (4) a failure by

policy makers to properly train or supervise their subordinates, amounting to

deliberate indifference to the rights of those who come in contact with municipal

employees.” Calicchio v. Sachem Central Sch. Dist., 2015 WL 5944269, *10

(E.D.N.Y. Oct. 13, 2015) (citing Giscombe v. New York City Dept. of Educ., 2013 WL

829127, * 7 (S.D.N.Y. Feb. 28, 2013); accord Bektic-Marrero v. Goldberg, 850 F.

Supp. 2d 418, 430 (S.D.N.Y.2012)); Zambrano–Lamhaouhi v. New York City Bd. of

Educ., 866 F. Supp. 2d 147, 175 (E.D.N.Y.2011).

Defendants argue that there is no evidence that Principal Dolan represents

the final decision maker. The Court disagrees. The letter sent out by Dolan and

Larsen states that “In view of the fact that your son, Matthew Calicchio, has been

absent from school 20 consecutive days since the start of school, -I have no recourse

but to remove Matthew from the rolls of Sachem High School North.” (emphasis

added). This is sufficient to present to the jury the question of whether the alleged

violation of plaintiff’s civil rights was caused by actions taken by an official with

“final decision-making authority.” See Joinnides v. Floral Park-Bellerose Union Free

Sch. Dist., 2016 WL 3841096 (E.D.N.Y. July 13, 2016) (noting that “district courts

in this Circuit have held that a school principal is a final policymaker where ‘the

ultimate harm that befell the plaintiff was under the principal’s control.’” (quoting

Zambrano-Lamhaouhi v. N.Y. City Bd. of Educ., 866 F. Supp. 2d 147, 175 (E.D.N.Y.

2011)); see also Lovell v. Comsewogue Sch. Dist., 214 F. Supp. 2d 319, 324

(E.D.N.Y.2002) (to possess authority, a person “need not be a municipal policymaker

for all purposes. Rather, with respect to the conduct challenged, she must be

‘responsible under state law for making policy in that area of the [municipality's]

business.’ ” (quoting Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir.2000))).

The motion to dismiss the Monell claim is denied.

IV. The Unlawful Detention Claims

Plaintiff asserts claims for unlawful detention both under § 1983 and under

state law. Both these causes of action require that (1) defendant intended to confine

the plaintiff; (2) plaintiff was conscious of the confinement; (3) plaintiff did not

consent to the confinement and (4) the confinement was not privileged. Acevedo v.

Ross, 2019 WL 343246, at *4 (E.D.N.Y. Jan. 28, 2019) (citing Singer v. Fulton

County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).

Defendants contend that “the record contains no evidence other than

Matthew’s bare assertions” that any District employee intended to confine [him]

against his will to work on the school’s computers. (Defs.’ Mem. at 28.) In fact, the

record contains more than bare assertions. Matthew testified under oath, inter alia,

that (1) Mott told him he could not go anywhere, not even to get lunch or go to the

bathroom until he finished his work; (2) Dolan told him on multiple occasions that

he could not leave until the work was finished; (3) he was told that if he left he

would be suspended or expelled for disobeying an administrator; and (4) he was

forcibly kept in a room. (50-h Exam. at 56-59, 94-96.). This testimony is sufficient to

support the first three elements of an unlawful detention claim specified above.

Further, the Court rejects Defendants’ argument that any such detention was

privileged simply because it occurred in an educational institution, as viewing the

facts in the light most favorable to Plaintiff, the detention was not tethered to a

disciplinary or other educational purpose.

The motion for summary judgment on the unlawful detention claim is denied.

V. Intentional Infliction of Emotional Distress

Liability for intentional infliction of emotional distress requires conduct “so

outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized society.” Murphy v. Am Home Prod. Corp., 58 N.Y.2d 293 (1983). Viewing

the evidence in the light most favorable to Matthew, a reasonable trier of fact could

conclude that this standard has been met. According to Matthew, he was kept out of

class, forced to work on the District’s computer, not allowed to go to the bathroom or

to lunch while so engaged, and threatened. Such behavior by those charged with the

education and care of a minor, if true, is intolerable in a civilized society. The

motion as addressed to this claim is denied.

VI. New York Labor Law Clams

Defendants repeats their argument, made in connection with the FLSA

claim, that there is no evidence that Matthew was an employee. For the reasons

already enunciated with respect to the FLSA claim, the motion or summary

judgment on the New York Labor Law claim is denied.

VII. Infringement on Parental Liberty

Michael and Sandra have each asserted claims for denial of Substantive Due

Process, grounded in the assertion that Defendants deprived them of their right to

make independent and informed decisions with respect to the education and

upbringing of Matthew by pulling him out of his classes and forcing him to work

without recompense or credit and ordering Matthew not to tell them he was

working on the District’s computers.

Substantive due process rights safeguard persons “against the government's

‘exercise of power without any reasonable justification in the service of a legitimate

governmental objective.’” Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999)

(quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). “Substantive due

process protects against government action that is arbitrary, conscience-shocking,

or oppressive in a constitutional sense, but not against a government action that is

incorrect or ill advised.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d

Cir.1995) (internal quotation marks omitted). See Lowrance v. Achtyl, 20 F.3d 529,

537 (2d Cir. 1994). To state a Substantive Due Process claim, plaintiffs must allege

(1) a valid liberty or property interest, and (2) defendants infringed on that interest

in an arbitrary or irrational manner. Harlen Assocs. v. Inc. Vill. of Mineola, 273

F.3d 494, 503 (2d Cir. 2001); Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d

Cir.1999) (“For state action to be taken in violation of the requirements of

substantive due process, the denial must have occurred under circumstances

warranting the labels ‘arbitrary’ and ‘outrageous.’ ”).

Included within the protections of the substantive right under the Due

Process clause is the right to intimate familial association. Gorman v. Rensselaer

County, 910 F.3d 40. The parental interest “in the care, custody, and control of their

children” is “perhaps the oldest of the fundamental liberty interests recognized.”

Troxel v. Granville, 530 U.S. 57, 65 (2000). As the Second Circuit in McCaul v.

Ardsley Union Free School Dist., 514 F. App’x 1 (2d Cir. 2013) stated, “[i]t is well

settled that parents have ‘a constitutionally protected liberty interest in the care,

custody and management of their children.’” (citing Southerland v. City of N.Y., 680

F.3d 127, 142 (2d Cir.2011)). However, “a claim under the Due Process Clause for

infringement of the right to familial associations requires the allegation that state

action was specifically intended to interfere with the family relationship.” Gorman,

910 F.3d at 48.

Defendants maintain that the second element is absent as the record is

“devoid of evidence supporting Matthew’s claims that he was forced to work for the

District without his parents’ permission and ordered not to tell his parents . . . .”

(Defs.’ Mem. at 36.) As the Court has already pointed out, Matthew’s testimony

under oath provides adequate support to create an issue of fact.

Defendants also argue that “Plaintiffs have cited no case – and we are aware

of none – in which a court has found actions of a school district to rise to the level of

a substantive due process outside the reproductive rights context.” (Defs.’ Mem. at

36.) It is accurate that Jackson v. Peekskill City School Dist., 106 F. Supp. 3d 420

(S.D.N.Y. 2015), involved allegations by the parents of a minor child that without

their consent, a school counselor removed their minor from a class and secretly

transported her between school and a health clinic for the purpose of assisting her

with birth control. In holding that the allegations stated a substantive due process

claim for interference in the parent-child relationship, that court relied upon both

the counselor providing the child with the means to access birth control and that

the child “was obliged to be at school – and while plaintiffs believed she was

receiving instruction . . . she was allegedly aided in accessing healthcare services.”

Here, there is evidence that while Michael and Sandra believed that Matthew was

receiving instruction in his enrolled classes, Matthew was being forced to perform

computer work for the District. This alleged manipulative and coercive conduct is

adequate to support a Substantive Due Process claim.

Finally, Matthew testimony that he was ordered not to tell his parents about

his work is sufficient to permit a reasonable trier of fact to conclude that the

District engaged in actions “specifically intended to interfere with the family

relationship” as opposed to an “indirect and incidental consequence of their

conduct.” Gorman v. Rensselaer County, 910 F.3d 40, 48 (2d Cir. 2018).

On the grounds presented, summary judgment on Parents’ Substantive Due

Process claim is not warranted.

VIII. The Remaining Claims

Plaintiff does not oppose Defendants’ motion seeking dismissal of his §1983

false arrest claim or his state law claims for slander per se and false arrest.

Accordingly, Defendants’ motion is granted as to these causes of action.

CONCLUSION

For the reasons set forth above, the motion for summary judgment is granted

with respect to Matthew’s §1983 false arrest claim and his state law claims for

slander per se and false arrest, but otherwise denied.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

January 17, 2020 Denis R. Hurley

United States District Judge