Z.F.X. v. Riverhead Central School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Z.F.X., a minor by YUAN YUAN

VANKESTEREN, his mother, and YUAN YUAN

VANKESTEREN,

Plaintiffs, MEMORANDUM &

ORDER

CV 20-962 (GRB)(ST)

-against-

RIVERHEAD CENTRAL SCHOOL DISTRICT,

PULASKI STREET SCHOOL, DAVID M.

DENSIESKI, PATRICK K. BURKE, INFANT

DEFENDANT K.C., by Parents John Doe and Jane

Doe, INFANT DEFENDANT MIKE DOE, by

Parents Chris Doe and Mary Doe,

Defendants.

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GARY R. BROWN, United States District Judge:

In this action, plaintiff Z.F.X., a student at the Pulaski Street School (the “School”), and

his mother (together, “Plaintiffs”), allege race-based harassment that plaintiff Z.F.X. allegedly

suffered at the hands of two other students while enrolled at the School. As a result, Plaintiffs

bring this action against the School, its governing school district (the “District”), and its principal

and assistant principal (collectively, the “School Defendants”), as well as two individual infant

defendants, pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (“Title

VI”); Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (“Title II”); and 42 U.S.C. § 1983

(“Section 1983”), as well as various state law claims.1 Before the Court is the School Defendants’

1 Plaintiffs withdrew their Title VI claim as against the individual School Defendants, as well as their additional claim

under 42 U.S.C. § 1981, at the pre-motion conference held before the undersigned on April 27, 2020.

motion to dismiss Plaintiffs’ complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. For the reasons set forth below, the School Defendants’ motion is GRANTED and

Plaintiffs’ claims are DISMISSED, though Plaintiffs are granted leave to replead if the

circumstances so warrant it.

I. Factual Background

The allegations of the complaint, which the Court must accept as true for the purposes of

this motion, provide that during the 2018 school year, plaintiff Z.F.X. was subjected to racist

comments on a daily basis by two fellow students based on his “ethnicity, and race as an Asian

American.” Compl., Docket Entry (“DE”) 1, at ¶¶ 51-52. Plaintiff Z.F.X. “report[ed] these

racially charged verbal attacks to a supervisor at the school and to his parents.” Id. ¶ 55. In

retaliation, the two students assaulted Z.F.X. on two occasions. Id. ¶ 56. First, in January 2019,

defendant K.C. pushed Z.F.X. to the ground upon entering a restroom at the School, resulting in a

torn meniscus and sprained MCL. Id. ¶¶ 57-61. Then, during a gym class in June 2019, defendant

K.C. punched and scratched plaintiff Z.F.X.’s face, pushed him to the ground, and kicked him in

the genitals. Id. ¶¶ 68-70. A passing security monitor observed this incident and attempted to take

remedial action. Id. ¶ 71. Plaintiffs now bring claims alleging that the School Defendants

“tolerated, condoned and effectively facilitated” and/or “failed to protect” plaintiff Z.F.X. from

these acts of harassment and discrimination based on their alleged inactivity in response to these

incidents. See, e.g., id. ¶¶ 78, 84.

II. Standard of Review

The pending motion to dismiss is decided under the well-established standard of review of

motions made under Rule 12(b)(6), as discussed by way of example in Burris v. Nassau County

District Attorney, No. 14-CV-5540 (JFB) (GRB), 2017 WL 9485714, at *3-4 (E.D.N.Y. Jan. 12,

2017), report and recommendation adopted, 2017 WL 1187709 (E.D.N.Y. Mar. 29, 2017), which

discussion is incorporated by reference herein. Under that standard, the Court is required to

assume the allegations of the complaint to be true for the purposes of the motion. “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,

550 U.S. at 555). “Determining whether a complaint states a plausible claim for relief will . . . be

a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679 (citation omitted).

III. Discussion

Claims against the Pulaski Street School

As an initial matter, the School Defendants argue that the claims against the School must

be dismissed, as “a particular school building is ‘not a legal entity capable of being sued.’” Mot.,

DE 24, at 6 (citations omitted). It is well established that “[u]nder New York law, departments

that are merely administrative arms of a municipality do not have a legal identity separate and

apart from the municipality and, therefore, cannot sue or be sued.” Davis v. Lynbrook Police Dep't,

224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (collecting cases). This doctrine extends to schools,

like the defendant School here, that do not have a legal identity separate from their school district.

See, e.g., Guerriero v. Sewanhaka Cent. High Sch. Dist., 150 A.D.3d 831, 832 (2017) (finding that

the school defendant, as opposed to its governing district, was “not a legal entity capable of being

sued”). Moreover, because Plaintiffs’ Title II claims are lodged only against the defendant School,

those claims are also subject to dismissal.2 Accordingly, Plaintiffs’ claims against the School and

under Title II are DISMISSED with prejudice.

Title VI Claims

“Title VI prohibits a recipient of federal funds from discriminating on the basis of race,

color, or national origin.” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664 (2d Cir. 2012)

(citing 42 U.S.C. § 2000d). “[I]n the educational setting, a school district [may be] liable for

intentional discrimination when it has been ‘deliberately indifferent’ to teacher or peer harassment

of a student.” Id. at 665. However, “[l]iability only arises if a plaintiff establishes: (1) substantial

control, (2) severe and discriminatory harassment, (3) actual knowledge, and (4) deliberate

indifference.” Id. (citing Davis Next Friend LaShonda D. v. Monrode Cty. Bd. of Educ., 526 U.S.

629, 653-50 (1999)). “A school district will be subject to liability for third-party conduct only if

it ‘exercises substantial control over both the harasser and the context in which the known

harassment occurs.’ A school district, the Supreme Court noted, exercises substantial control over

the circumstances of the harassment when it occurs ‘during school hours and on school grounds.’”

2 Even if asserted against the District, Plaintiffs’ claims under Title II, which “prohibits discrimination and segregation

in places of ‘public accommodation,’” fail because “[p]ublic schools do not purport to be open to the general public

in the ways, that for example, hotels, restaurants and movie theaters (all establishments explicitly covered by Title II)

do.” Gilmore v. Amityville Union Free Sch. Dist., 305 F. Supp. 2d 271, 278-79 (E.D.N.Y. 2004) (citations omitted);

see also D.W.M. by Moore v. St. Mary Sch., 2019 WL 4038410, at *14 (E.D.N.Y. Aug. 27, 2019) (“It is well-

established precedent in the Second Circuit that schools are not places of public accommodation.”). This is true even

in the face of Plaintiffs’ argument that the sports area bleachers convert the School into a place of public

accommodation, as such use is both de minimis and irrelevant to the instant proceedings.

Id. (quoting Davis, 526 U.S. at 644-46). “Even assuming the requisite level of control, not all

harassment is actionable. The harassment must be ‘severe, pervasive, and objectively offensive’

and discriminatory in effect.” Id. (quoting Davis, 526 U.S. at 650-51). Discriminatory actions

covered under Title VI include those that “‘[r]estrict an individual in any way in the enjoyment of

any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit’

under the school system. Educational benefits include an academic environment free from racial

hostility.” Id. at 665-66 (quoting 34 C.F.R. § 100.3(b)(1)(iv)). Furthermore, “a school district

must know of the harassment. Constructive knowledge is not enough; only actual knowledge is a

predicate to liability.” Id. at 666 (citing Davis, 526 U.S. at 641-43); cf. Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 288 (1998). “Finally, ‘only deliberate indifference to [student-on-

student] harassment can be viewed as discrimination by school officials themselves.’ The school's

action—or inaction—must, ‘at a minimum, cause students to undergo harassment or make them

liable to or vulnerable to it.’” Zeno, 702 F.3d at 666 (citations omitted). “A finding of deliberate

indifference depends on the adequacy of a school district’s response to the harassment. A failure

to respond, a response that ‘only follows after a lengthy and unjustified delay,’ and a response that

‘amount[s] to deliberate indifference to discrimination,’ have all been found inadequate.” Id.

(citations omitted).

The School Defendants focus on the last two elements of the Davis framework (as set out

above in Zeno), arguing that Plaintiffs have not sufficiently alleged either that the District had

actual knowledge of the incidents at issue or that the District demonstrated deliberate indifference

to these incidents. See Mot., DE 24, at 3-5. Because the Court finds that Plaintiffs have failed to

plead actual knowledge on the part of the District, it is unnecessary to reach the question of whether

Plaintiffs have sufficiently pleaded deliberate indifference.3

“[A] school official who ‘at a minimum has authority to address the alleged [harassment]

and to institute corrective measures on the [school district’s] behalf’ must have actual knowledge

of student-on-student harassment in order for the district to be liable” for such harassment under

Title VI. T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332, 358 (S.D.N.Y. 2014) (quoting

Gebser, 524 U.S. at 290); see also Posso v. Niagara Univ., No. 19-CV-1293-LJV-MJR, 2021 WL

485699, at *5 (W.D.N.Y. Feb. 10, 2021) (A school district “has actual knowledge when ‘a school

official with authority to address the alleged discrimination had actual knowledge ... of the

discrimination.’” (quoting Carabello v. New York City Dept. of Educ., 928 F.Supp.2d 627, 638

(E.D.N.Y. 2013))). Constructive knowledge, i.e., allegations that the district should have known

of the harassment, is not enough to establish liability. See Posso, 2021 WL 485699, at *5 (citing

Gebser, 524 U.S. at 290). As a result, reporting harassment to a school principal or school

administrators has been found to be sufficient to establish actual knowledge. See, e.g., Pine Bush,

58 F. Supp. 3d at 358; Zeno, 702 F. 3d at 668; G.D.S. ex rel. Slade v. Northport-E. Northport

Union Free Sch. Dist., 915 F. Supp. 2d 268, 278 (E.D.N.Y. 2012). On the other hand, “report[ing]

incidents of harassment to [the student’s] teachers on several occasions” has been held to be

“insufficient to establish actual notice.” See Pine Bush, 58 F. Supp. 3d at 358.

Plaintiffs present only two factual allegations that mention any School or District

employees. First, Plaintiffs allege that plaintiff Z.F.X. reported the verbal attacks to a “supervisor”

at the school; second, Plaintiffs allege that a “security monitor” observed the second incident of

3 Indeed, it would make little sense to address whether the District made an appropriate response to harassment about

which it may not have been aware. See DiStiso v. Cook, 691 F.3d 226, 250 (2d Cir. 2012) (“Because plaintiff's claims

of deliberate indifference to physical misbehavior fail at the actual knowledge step . . . we need not consider

defendants’ arguments . . . based on the final, reasonable response, element of a deliberate indifference claim.”).

physical assault on plaintiff Z.F.X. See Compl., DE 1, ¶¶ 55, 71. However, Plaintiffs fail to

provide any further identification of either of these two individuals, whether they may have had

the “authority to address” the harassment “and to institute corrective measures” on behalf of the

District, or whether they may have been obligated to (or did, in fact) report these incidents to other

individuals who did have such authority.4 In short, these two allegations fail to plausibly indicate

that any official “with authority to address the alleged discrimination” had actual knowledge of

the harassment.

Plaintiffs’ remaining allegations concerning knowledge of these incidents on the part of

the School Defendants fare no better. For example, Plaintiffs state that the School Defendants

“ignored the complaints made by Plaintiff Z.F.X.” and “refused to speak with the parents of

Plaintiff Z.F.X.” regarding “the racially motivated physical and verbal attacks,” but provide no

further detail about communications with the School Defendants or the identification of any other

employees involved in such communications. Id. ¶¶ 93-94. Otherwise, Plaintiffs merely set forth

precisely the sort of conclusory statements and threadbare recitals of the School Defendants’

purported knowledge as proscribed by Iqbal. See, e.g., id. ¶¶ 101, 112, 121, 138, 159, 164

(asserting that the School Defendants “knew or should have known” or had “actual knowledge” of

the incidents). Plaintiffs have therefore failed to allege that these incidents of discrimination were

reported to any of the relevant School or District officials; accordingly, Plaintiffs’ claim under

Title VI is DISMISSED.

4 Plaintiffs argue in their opposition brief that “reporting to a supervisor” in fact meant that plaintiff Z.F.X. “reported

to the principal’s office” after he was attacked and thereupon “informed the principal and vice principal of the events

that took place.” Opp., DE 20, at 6. However, it is well established that plaintiffs “cannot amend their complaint by

asserting new facts or theories for the first time in opposition to Defendants’ motion to dismiss.” K.D. v. White Plains

Sch. Dist., 921 F.Supp.2d 197, 209 n. 8 (S.D.N.Y.2013) (collecting cases); see also Wright v. Ernst & Young LLP,

152 F.3d 169, 178 (2d Cir. 1998). Accordingly, these allegations are disregarded in addressing the School Defendants’

motion.

Section 1983 Claims

Plaintiffs raise claims under § 1983, which include alleged violations of rights under the

Equal Protection Clause and, apparently, substantive Due Process, but these claims cannot survive

the instant motion. First, “[t]o prevail on a § 1983 claim of race discrimination in violation of

equal protection, the law requires a plaintiff to prove the defendant’s underlying ‘racially

discriminatory intent or purpose.’” DiStiso v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (quoting

Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). “[C]laims of

intentional race discrimination can be based on the ‘deliberate indifference’ of school boards,

administrators, and teachers to invidious ‘harassment, in the school environment, of a student by

other children or parents.’” Id. at 241-42 (quoting Gant ex rel. Gant v. Wallingford Bd. of Educ.,

195 F.3d 134, 140 (2d Cir. 1999)). Where Plaintiffs have failed to allege that the District, or any

official “with authority to address the alleged discrimination” (such as the individual School

Defendants), had actual knowledge of the harassment, Plaintiffs clearly cannot demonstrate

deliberate indifference.

Plaintiffs raise three further claims under § 1983, alleging that the School Defendants

“failed to protect” plaintiff Z.F.X. from the “attacks upon his civil rights and liberty interests.”

See, e.g., Compl., DE 1, at ¶¶ 78, 84, 89. This language suggests that Plaintiffs intended for the

claims to be construed as addressing violations of substantive due process. See, e.g., United States

v. McLaurin, 731 F.3d 258, 261 (2d Cir. 2013) (discussing the concern of substantive due process

claims with the invasion of liberty interests).

However, where, as here, a substantive due process claim is predicated on the same factual

allegations as a separate claim based on another source of constitutional protection – for example,

the Equal Protection Clause – the substantive due process claim must be dismissed. See, e.g., Hu

v. City of New York, 927 F.3d 81, 104 (2d Cir. 2019) (affirming dismissal of a substantive due

process claim because it “rest[ed] on the same set of factual allegations” as plaintiff’s Equal

Protection claim and therefore “must be analyzed under the Equal Protection Clause”); Velez v.

Levy, 401 F.3d 75, 94 (2d Cir. 2005) (affirming dismissal of a substantive due process claim

because “[w]hat [was] allegedly shocking about what the defendants[] did [was] . . . their motive

to deprive [plaintiff] of liberty without procedural due process . . . facts which, if proven, would

constitute, in themselves, specific constitutional violations”); Johns v. Town of E. Hampton, 942

F. Supp. 99, 108 (E.D.N.Y. 1996) (dismissing substantive due process claim because “the same

state conduct” supporting the claim “also may be analyzed to allege claims under . . . the Equal

Protection Clause of the Fourteenth Amendment”); Rother v. NYS Dept. of Corr. and Cmty.

Supervision, No. 12–CV–0397, 2013 WL 4774484, at * 14 (N .D.N.Y. Sept. 4, 2013) (“[T]he harm

and conduct challenged by the substantive-due-process . . . and equal-protection claims

significantly overlap. Because the claim for substantive due process is subsumed by Plaintiff's

other constitutional claims, it must be dismissed.”).

To the extent that these § 1983 claims are brought against the individual School Defendants

in their official capacities, they are duplicative of the § 1983 claims against the District and are

dismissed as redundant. See DeJean v. Cty. of Nassau, No. CV-06-6317 SJF AKT, 2008 WL

111187, at *5 (E.D.N.Y. Jan. 8, 2008) (“Based upon the understanding that it is duplicative to

name both a government entity and the entity's employees in their official capacity, courts have

routinely dismissed corresponding claims against individuals named in their official capacity as

redundant and an inefficient use of judicial resources.” (quotations and citation omitted)). And,

to the extent Plaintiffs intended such claims to lie against these defendants in their individual

capacities, the failure to allege any personal involvement by these officials requires dismissal.

“Government officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior. . . . Because vicarious liability is inapplicable

to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through

the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676

(collecting cases). “An individual may be held liable under §§ 1981 and 1983 only if that

individual is ‘personally involved in the alleged deprivation.’” Littlejohn v. City of New York, 795

F.3d 297, 314 (2d Cir. 2015) (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365

F.3d 107, 127 (2d Cir.2004)); see also Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014)

(“[Section] 1983 requires individual, personalized liability on the part of each government

defendant.”).

As such, Plaintiffs’ claims under § 1983 are DISMISSED.

Plaintiffs’ State Law Claims

Plaintiffs bring additional claims arising under state law, including claims for negligence,

intentional infliction of emotional distress, negligent infliction of emotional distress, prima facie

tort, and breach of contract. See Compl., DE 1, at ¶¶ 155-76. Having dismissed Plaintiffs’ Title

VI, Title II, and Section 1983 claims—the only federal causes of action—the Court finds that

judicial economy, convenience, fairness and comity weigh against retaining supplemental

jurisdiction over the remaining state law claims for negligence, intentional infliction of emotional

distress, negligent infliction of emotional distress, prima facie tort, and breach of contract

negligence claim, and declines to do so. These claims are therefore DISMISSED.

IV. Conclusion

For the reasons set forth above, it is hereby ORDERED that Plaintiffs’ complaint is

DISMISSED in its entirety. However, leave to amend a pleading shall be “freely give[n] ... when

justice so requires.” Ambac Assurance Corp. v. U.S. Bank Nat’l Ass’n, No. 17-CV-2614, 2020 WL

42245, at *1 (S.D.N.Y. Jan. 3, 2020) (quoting Fed. R. Civ. P. 15(a)). This “‘permissive standard’

of Rule 15 ‘is consistent with [the Second Circuit’s] strong preference for resolving disputes on

the merits.’” Loreley Financing (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190

(2d Cir. 2015) (citation omitted). “When a motion to dismiss is granted, the usual practice is to

grant leave to amend the complaint.” Davidson v. Cty. of Nassau, No. CV 18-1182 (GRB), 2020

WL 956887, at *4 (E.D.N.Y. Feb. 26, 2020) (citation omitted). Accordingly, this dismissal is

deemed WITHOUT PREJUDICE to amendment, provided, of course, that Plaintiffs have facts

warranting such amendment. The Clerk of the Court is directed to enter judgment consistent with

this Order.

SO ORDERED.

Dated: Central Islip, New York

March 31, 2021

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge