# Sutton v. Stony Brook University

> District Court, E.D. New York · August 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10306727

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 18, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306727

## How later opinions describe it (automated extraction)

- observing that a document is “integral” if the complaint “relies heavily upon its terms and effect”
- holding that the Court need not grant pro se plaintiffs leave to amend when it previously has been given and the plaintiff has “faile[ed] to cure the deficiencies previously identified by the Court.”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
DANIELLE SUTTON,

Plaintiff, MEMORANDUM & ORDER
18-CV-7434(JS)(ARL)
-against-

STONY BROOK UNIVERSITY,
NICOLE GALANTE,
in her Individual Capacity,
CHARLES TABER,
in his Individual capacity, and
SAMUEL L. STANLEY, JR.,
in his Individual capacity,

Defendants.
----------------------------------x
For Plaintiff: Danielle Sutton, pro se
P.O. Box 231
Canandaigua, New York 14424

For Defendants: Richard H. Yorke, Esq.
Assistant Attorney General
New York State Attorney General’s Office
200 Old Country Road, Suite 240
Mineola, New York 11501

SEYBERT, District Judge:
Pro se plaintiff Danielle Sutton (“Plaintiff”) commenced
this action against defendants Stony Brook University (“SBU”),
Nicole Galante (“Galante”), Charles Taber (“Taber”), and Samuel L.
Stanley, Jr. (“Stanley”) (together, the “Defendants”) alleging
gender-based discrimination, harassment, and retaliation claims
pursuant to Title IX of the Educational Amendments of 1972, 20
U.S.C. § 1681, et seq. and violations of the First and Fourteenth
Amendments pursuant to 42 U.S.C. § 1983 (“Section 1983”). Before
the Court is Defendants’ motion to dismiss Plaintiff’s Third
Amended Complaint (“TAC,” ECF No. 54) pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Mot., ECF No. 65; Defs. Br., ECF No.
65-1; Pl. Opp., ECF No. 66; Defs. Reply, ECF No. 73.) For the
reasons that follow, Defendants’ motion is GRANTED in its entirety.
BACKGROUND1

The Court presumes the parties’ familiarity with the
factual and procedural background as extensively described in the
Court’s November 5, 2020 Memorandum and Order (the “Prior Order”),
which granted Defendants’ motion to dismiss Plaintiff’s Second
Amended Complaint (“SAC”) and granted Plaintiff leave to file a
Third Amended Complaint. See Sutton v. Stony Brook Univ., No. 18-
CV-7434, 2020 WL 6532937, at *1-4 (E.D.N.Y. Nov. 5, 2020). The
facts recited herein include newly asserted allegations and are
otherwise repeated as necessary to adjudicate the pending motion.
I. Facts
Plaintiff’s allegations arise out of her mid-semester

removal from student teaching and eventual dismissal from the
Graduate English Education Program (the “Education Program”) at
SBU in October 2017. (TAC ¶¶ 2, 62, 86.) Specifically, Plaintiff
claims that she was harassed by her student teaching

1 The following facts are taken from the TAC and presumed to be
true for the purposes of this Memorandum & Order.
supervisor/instructor Thomas Mangano (“Mangano”) (Id. ¶¶ 6-51),
who allegedly treated her differently because she was the only
female student that refused to attend off-campus Saturday
breakfast meetings he held with his seminar class (id. ¶ 25).
Plaintiff alleges that “Galante had a grudge against Plaintiff for

speaking out against the Supervisor’s [b]reakfasts and making her
harassment complaint.” (Id. ¶ 71.) She also felt “intimidated”
by “Mangano’s repeated unwanted, unwelcome text messages, phone
calls/hang ups, voice messages, and perceived his obsessive
persistence to meet/talk on the phone with [her] as harassment.”
(Id. ¶ 18.) Moreover, “Mangano always found excuses to keep [her]
after class/force her to his office” and that “[h]e didn’t do this
with the other students.” (Id. ¶ 40.)
Plaintiff began student teaching at Sachem North High
School (“Sachem”) on September 6, 2017 with co-teacher Dawn DelSeni
(“DelSeni”). (Id. ¶¶ 1, 5, 32.) On September 25, 2017, Mangano
visited Plaintiff at Sachem and conferenced with her in a poorly

lit library where he “berated” her, made “demeaning, denigrating,
[and] disparaging remarks about Plaintiff’s choice to become a
teacher,” ridiculed her “feminine gait,” touched her upper arm,
and reminded her that refusing his phone calls was a “problem.”
(Id. ¶¶ 43-44.) Mangano again visited Plaintiff at Sachem on
September 26, 2017 and conferenced with her in a poorly-lit area
of the library. (Id. ¶ 45.) There, he intimidated her when he
stated, “in an angry voice,” that “she was ‘wasting’ his time.”
(Id. ¶ 45.) On September 27, 2017, Plaintiff was the only student
in attendance at Mangano’s seminar class because other students
planned to attend his Saturday breakfast meeting. (Id. ¶ 46.)
During that class, “Mangano held his pen in [an] upright position”

and “made slow, sexually suggestive circular motions around the
pen cap to intimidate plaintiff.” (Id. ¶ 47.) On September 29,
2017, Mangano made another visit to Plaintiff’s classroom at Sachem
and conferenced with her in a “poorly lit” conference room. (Id.
¶ 50.) There, he told Plaintiff that if she conducted her lesson
as she had done, she would pass her edTPA exam. (Id.) He also
“shifted the conversation to how Plaintiff still wasn’t answering
his calls/texts and [that] this was a problem.” (Id.) Mangano
“threatened Plaintiff with a contract to force her to communicate
with him outside of class,” and told Plaintiff that he could
recommend that Galante remove her from student-teaching. (Id.)
On September 29, 2017, Plaintiff lodged a complaint with

Galante regarding “Mangano’s repeated intimidation, ridicule,
insult and verbal abuse[.]” (Id. ¶ 51.) Plaintiff claims that
“Galante hid the complaint and did not forward it for investigation
and swept the complaint/discrimination under the rug to silence
Plaintiff.” (Id. ¶ 59.) According to Plaintiff, “[d]irectly
following [her] September 29, 2017 complaint about Supervisor
Mangano[,] Defendants began a campaign to silence Plaintiff for
speaking out.” (Id. ¶ 52.) During class on October 4, 2017,
Mangano did not permit Plaintiff to speak and told her to leave
class early and speak with Galante. (Id. ¶ 58.) On October 9,
2017, Galante informed Plaintiff that she was re-assigned to
Professor Sharon Anthony (“Anthony”). (Id. ¶ 99.) On October 11,

2017, Plaintiff met with Galante to discuss her complaint and
Galante allegedly stated that Plaintiff would have a “break” from
student teaching, with October 13, 2017 as her last day, and she
risked dismissal from SBU if she failed to meet requirements. (Id.
¶¶ 60-63.) SBU never held a hearing prior to removing her from
student teaching, which occurred one day before the scheduled video
segment of the edTPA exam. (Id. ¶¶ 121, 128.)
During her student teaching class on October 12, 2017,
Plaintiff attempted to tell her students the reason she was leaving
mid-semester, but DelSeni, her co-teacher, stopped her. (TAC ¶
66.) On October 13, 2017, Plaintiff emailed Stanley, SBU’s
President, regarding her removal from student teaching. Three

days later, she received a response stating that her concerns were
under investigation and that she should communicate with Melissa
Jordan (“Jordan”), SBU’s Senior Assistant Dean and School of
Professional Development Manager for Records and Admissions. (Id.
¶¶ 69, 70.) Separately, Plaintiff sent letters to SBU’s and
Sachem’s staff and administration and on October 16, 2017, Galante
told Plaintiff to stop writing letters. (Id. ¶ 72.) That same
day, Galante emailed Plaintiff a contract along with a deep
reflection assignment, stating: “[i]f you are permitted to
continue student teaching, you will do so in the Spring, 2018
semester . . . and you will do so after signing a contract.” (Id.
¶ 113.) Ken Lindblom (“Lindblom”), Dean of the School of

Professional Development, confirmed the required assignment,
stating:
At this point, you have two choices: 1) agree to the
program Dr. Galante has set out for you; or, 2) refuse
to comply or ignore the agreement, and be dismissed from
the program. Please note that selecting number 1 does
not guarantee you a new student teacher placement.

(Id. ¶¶ 76, 117.) Plaintiff did not agree to sign the contract or
complete the reflection assignment. (Id. ¶ 115.) On October 17,
2017, Plaintiff emailed Jordan, stating “Did Dr. Galante happen to
mention to you that I had made a complaint to her about a male
professor who was harassing me.” (Id. ¶ 73.) Plaintiff did not
receive a response. (Id. ¶ 73.) On October 18, 2017, Plaintiff
attended Anthony’s seminar class but was told to leave because she
was not “currently [s]tudent [t]eaching and had not signed
Galante’s contract.” (Id. ¶ 120.)
Plaintiff alleges that on October 19, 2017, she emailed
Galante, stating “And why you are coercing me to sign a contract
in order for me to be placed again? Can you please tell me what
specifically did I do wrong to be suspended? Why am I being
suspended? This is discrimination & differential treatment.” (Id.
¶ 75.) That same day Lindblom responded:
You have made unevidenced accusations against specific
faculty members . . . You may also have damaged the
University’s longstanding positive working relationship
with an important, local school district. These are
very serious matters, and you are responsible for all
the statements, accusations, and threats you have made
in writing against specific individuals. There is
likely to be fall-out from your statements.

At this point I would ask Dr. Galante and all faculty in
the . . . Education Program to cease communication with
you unless and until you respond to the agreement. Until
then, you should communicate only with Ms. Jordan and
anyone else to whom she directs you.

(Id. ¶ 76.)
On October 25, 2017, Taber, Vice Provost for Graduate
and Special Education at SBU, sent Plaintiff a letter dismissing
her from the Education Program for being in default and for failing
to meet the Education Program’s milestones. (Id. ¶¶ 86, 136, 140.)
Plaintiff’s university email was disabled on October 30, 2017.
(Id. ¶ 90.) Plaintiff appealed her dismissal on November 5, 2017
but was not provided a hearing date. (Id. ¶¶ 158, 165.) Plaintiff
was not permitted to attend classes while her appeal was pending.
(Id. ¶ 164.) The appeals panel met on November 27, 2017, and
Plaintiff’s appeal was denied without a hearing on December 19,
2017. (Id. ¶¶ 128, 169-70.)
II. Procedural History
Plaintiff filed her initial complaint on December 28,
2018 (ECF No. 1) and simultaneously moved for a preliminary
injunction (ECF No. 2). By Electronic Order dated February 12,
2019, this Court denied Plaintiff’s motion for preliminary

injunction, finding that she failed to show that “extreme or very
serious” harm would result from the denial of her motion, and that
Plaintiff failed to meet the burden of establishing “a clear
likelihood of success on the merits.” (Feb. 12, 2019 Elec. Order.)
Following Defendants’ first motion to dismiss (ECF No. 19),
Plaintiff sought leave to amend her complaint (ECF No. 22), which
this Court granted on April 15, 2019 (Apr. 15, 2019 Elec. Order).
Following Defendants’ second motion to dismiss (ECF No. 33),
Plaintiff again sought leave to file a second amended complaint
(ECF No. 36), which this Court granted on August 1, 2019 (Aug. 1,
2019 Elec. Order).
On November 5, 2020, the Court issued the Prior Order,

which granted Defendants’ motion to dismiss the SAC and granted
Plaintiff leave to file a Third Amended Complaint. First, the
Court construed Plaintiff’s Title IX claims for gender-based
discrimination, harassment, and retaliation only against SBU and
dismissed those claims without prejudice. Sutton, 2020 WL 6532937,
at *6-11. Next, the Court dismissed with prejudice Plaintiff’s
Section 1983 claims against SBU and Defendants (in their official
capacities) for lack of jurisdiction. Id. at *11-12. The Court
also dismissed Plaintiff’s Section 1983 claims against the
individual defendants without prejudice for failure to allege a
constitutional violation. Id. at *12-18. Having dismissed
Plaintiff’s federal claims, the Court declined to exercise

supplemental jurisdiction over the state law claims. Id. at *18.
Finally, “mindful that Plaintiff has already been granted two
opportunities to amend the Complaint,” the Court granted Plaintiff
leave to file a Third Amended Complaint. Id.
Plaintiff filed the TAC on December 18, 2020, alleging
claims for: (1) gender-based discrimination and retaliation
pursuant to Title IX; (2) First Amendment retaliation; and (3) the
denial of due process and equal protection under the Fourteenth
Amendment pursuant to Section 1983.
DISCUSSION
I. Standard of Review
To withstand a motion to dismiss, a complaint must

contain factual allegations that “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This plausibility standard is not a “probability
requirement” and requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (internal quotation marks
and citation omitted). Although the Court must accept all
allegations in the complaint as true, this tenet is “inapplicable
to legal conclusions.” Id. Thus, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation omitted). Ultimately,
the Court’s plausibility determination is a “context-specific task

that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
When deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,
71 (2d Cir. 1998), which has been interpreted broadly to include
any document attached to the complaint, any statements or documents
incorporated in the complaint by reference, any document on which
the complaint heavily relies, and anything of which judicial notice
may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147,
152-53 (2d Cir. 2002) (observing that a document is “integral” if
the complaint “relies heavily upon its terms and effect”).

A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro
se complaint must state a plausible claim for relief and comply
with the minimal pleading standards set forth in Federal Rule of
Civil Procedure 8. See, e.g., Nielsen v. Rabin, 746 F.3d 58, 63
(2d Cir. 2014).
II. Documents Considered
Defendants submitted declarations and/or affidavits
(with exhibits) in support of their motion. Plaintiff asks the

Court to ignore the exhibits attached to the Declarations and
Affidavits of Galante and Jordan because neither party had first-
hand knowledge of Mangano’s alleged harassment or of Plaintiff’s
student teaching experience. (Pl. Opp. at 4; see Galante Decl.,
ECF No. 65-2; Galante Aff., ECF No. 65-14; Jordan Decl., ECF No.
65-10; Jordan Aff., ECF No. 65-17.) Plaintiffs’ request is GRANTED
in part and DENIED in part.
Generally, when deciding a motion to dismiss, the Court
is “limited to consideration of the Complaint itself.” Dechberry
v. N.Y. City Fire Dep’t, No. 14–CV–2130, 2015 WL 4878460, at *1
(E.D.N.Y. Aug. 14, 2015). However, as discussed in the Prior
Order, a court is entitled to consider, inter alia, “documents

attached to or incorporated in [the complaint] by reference,”
“documents ‘integral’ to the complaint and relied upon in it, even
if not attached or incorporated by reference,” and “documents or
information contained in defendant’s motion papers if plaintiff
has knowledge or possession of the material and relied on it in
framing the complaint.” Sutton, 2020 WL 6532937, at *5 (quoting
Weiss v. Inc. Village of Sag Harbor, 762 F. Supp. 2d 560, 567
(E.D.N.Y. 2011)). “[T]o be integral to a complaint,” the other
party must have had (1) “actual notice of the extraneous
information,” (2) “relied upon the documents in framing the
complaint,” and (3) “ma[d]e a clear, definitive, and substantial
reference to the documents.” Johnson v. Levy, 812 F. Supp. 2d

167, 177 (E.D.N.Y. 2011) (internal quotation marks and citations
omitted).
The exhibits attached to the Galante and Jordan
Declarations are the same exhibits that were submitted in support
of Defendants’ motion to dismiss the SAC. Thus, for the same
reasons discussed at length in the Prior Order, the Court finds
“that all of the exhibits attached to the Galante Declaration and
the Jordan Declaration are ‘attached to [the complaint] or
incorporated in it by reference,’ ‘integral to the complaint and
relied upon in it,’ or that ‘[P]laintiff has knowledge or
possession of the material and relied on it in framing the [TAC].’”2
Sutton, 2020 WL 6532937, at *6 (quoting Weiss, 762 F. Supp. 2d at

567.) Accordingly, the Court considers the exhibits attached to
the Galante and Jordan Declarations.

2 Notably, Plaintiff’s October 25, 2017 dismissal letter and the
November 13, 2017 letter from Taber to Plaintiff are attached to
both the Defendants’ motion and to Plaintiff’s TAC. (Compare Jordan
Decl., Exs. 1 & 2 with TAC, Exs. B & C.)
For substantially similar reasons, and in accordance
with the standards discussed above, the Court also considers the
Galante and Jordan Affidavits and those documents referenced or
integral to the TAC, including the documents duplicative of
exhibits attached to the Galante and Jordan Declarations.3 See

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 112 (2d Cir. 2010)
(deciding motion to dismiss and noting that because the plaintiff
referred in the complaint to certain e-mails, “the [d]istrict
[c]ourt could deem them incorporated in the complaint and therefore
subject to consideration”). Therefore, the Court considers the
following additional exhibits: (1) a printout of text messages
between Mangano and DelSeni from September 6 through September 29,
2017 (Galante Aff., Ex. E, ECF No. 65-15); (2) an October 9, 2017
email from Galante to Plaintiff informing her that she was switched
into Anthony’s class (Galante Aff., Ex. J, ECF No. 65-16); (3) an
October 19, 2017 email from Plaintiff to Galante, Lindblom, and
Jordan questioning the reflection assignment (Galante Aff., Ex. O,

ECF No. 65-16); (4) an October 17, 2017 email exchange between
Jordan and Plaintiff (Jordan Aff., Ex. C, ECF No. 65-18); (5) an
October 25, 2017 email exchange between Plaintiff and Jordan
regarding Plaintiff’s dismissal (Jordan Aff., Ex. E, ECF No. 65-

3 To the extent there is overlap between the Declarations and
Affidavits, the Court cites to the Declarations’ exhibits.
18); (6) Plaintiff’s November 5, 2017 appeal of the dismissal
(Jordan Aff., Ex. F, ECF No. 65-18). The Court will not consider
any other exhibits attached to the Galante and Jordan Affidavits.
Finally, Plaintiff asserts additional facts via three
Declarations submitted in support of her opposition. (Declaration

of Gail Sutton, ECF No. 69; Declaration of John Sutton, ECF No.
70; Declaration of Danielle Sutton, ECF No. 67.) However, a
plaintiff “cannot amend her complaint by asserting new facts or
theories for the first time in opposition to [d]efendants’ motion
to dismiss.” K.D. ex rel. Duncan v. White Plains Sch. Dist., 921
F. Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013) (citation omitted). The
Court declines to address the facts raised for the first time in
the declarations submitted in opposition to Defendants’ motion.
III. Claims Considered
The Court only addresses the TAC’s new allegations. To
the extent the TAC re-alleges claims that the Court dismissed, the
Court defers to its findings in the Prior Order. For example,

though this Court’s Prior Order dismissed Plaintiff’s Title IX
claims against the individually-named defendants with prejudice,
the TAC appears to re-assert Title IX claims against both SBU and
the individually-named defendants. As discussed in the Prior
Order, individuals cannot be held liable under Title IX. See
Tesoriero v. Syosset Cen. Sch. Dist., 382 F. Supp. 2d 387, 396
(E.D.N.Y. 2005). Therefore, the Court does not consider Title IX
claims against the individual Defendants.
To the extent not explicitly addressed herein, the TAC’s
claims that are identical to those in the SAC are DISMISSED.
IV. Title IX Claims

In its Prior Order, this Court dismissed Plaintiff’s
gender-based discrimination and harassment claims against SBU
because Plaintiff failed to allege any facts from which gender-
based discriminatory intent could be reasonably inferred, and
because she failed to allege facts showing that her education
environment at SBU was objectively hostile or abusive. Sutton,
2020 WL 6532937, at *7-8. Additionally, the Court found the SAC
failed to allege that SBU had the requisite knowledge of gender
discrimination. Id. at *9. The Court also dismissed Plaintiff’s
Title IX retaliation claim because she failed to allege any facts
plausibly suggesting that she had engaged in a protected activity
or a causal connection between her complaint to Galante and her

dismissal from the Education Program. Id. at *9-10 & n.10.
Upon review of the TAC, Plaintiff’s allegations of
discrimination, harassment, and retaliation are substantially
similar to those allegations dismissed in the Prior Order. And,
although the TAC alleges a few new facts, none of these facts cure
the deficiencies identified in the Prior Order. As addressed
below, Plaintiff’s Title IX claims are DISMISSED with prejudice.
A. Plaintiff’s Title IX Claims Must Be Dismissed

Under Title IX, a plaintiff establishes a prima facie
case of gender discrimination by showing that: (1) she was
subjected to discrimination in an educational program; (2) the
program receives federal assistance; and (3) the discrimination
was based on sex. Manolov v. Borough of Manhattan Cmty. Coll.,
952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (citation omitted). “A
plaintiff alleging [ ] gender discrimination by a university must
do more than recite conclusory assertions. In order to survive a
motion to dismiss, the plaintiff must specifically allege the
events claimed to constitute intentional discrimination as well as
circumstances giving rise to a plausible inference of [ ]
discriminatory intent.” Yusuf v. Vassar Coll., 35 F.3d 709, 713
(2d Cir. 1994). “[N]aked assertions of discrimination without any
specific factual allegation of a causal link between the
defendants’ conduct and the plaintiff’s protected characteristic
are too conclusory to withstand a motion to dismiss.” Soloviev v.

Goldstein, 104 F. Supp. 3d 232, 249 (E.D.N.Y. 2015) (citation
omitted). Further, to establish liability under Title IX, a
plaintiff must show that “an official who . . . has authority to
address the alleged discrimination and to institute corrective
measures on the [university’s] behalf has actual knowledge of
discrimination . . . and fails to adequately respond.” Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
As is relevant here, a plaintiff may assert a Title IX
claim of sexual harassment under two theories: (i) hostile
environment; and (ii) quid pro quo harassment. See, e.g., Papelino
v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d
Cir. 2011). To establish a hostile educational environment

harassment claim under Title IX, a plaintiff must demonstrate “that
[s]he subjectively perceived the environment to be hostile or
abusive and that the environment objectively was hostile or
abusive, that is, that it was permeated with discriminatory
intimidation, ridicule, and insult sufficiently severe or
pervasive to alter the conditions of h[er] educational
environment.” Papelino, 633 F.3d at 89 (citing Hayut v. State
Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003)). To establish a
quid pro quo claim, plaintiff must allege: (1) the rejection of
sexual advances; (2) a tangible school-related consequence; and
(3) a causal connection between the two. Id.
1. Gender-Based Discrimination

Construing the facts in the light most favorable to
Plaintiff, the TAC fails to state a gender-based discrimination
claim pursuant to Title IX. Nowhere in the TAC does Plaintiff
allege that anyone at SBU referred to her gender, nor does she
recite any other fact from which “gender-based discriminatory
intent reasonably could be inferred.” Manolov, 952 F. Supp. 2d at
532 (“Without such a factual allegation, [ ] discrimination claims
cannot survive a motion to dismiss.”)
Rather, Plaintiff bases her gender discrimination claim
on Mangano’s use of “the power of his position and his employer
(Stony Brook) to get students to have private off campus Saturday

private breakfasts, private text messages and phone calls.” (Pl.
Opp. at 18; TAC ¶¶ 15-18.) The SAC alleged that Mangano told
Plaintiff that she was the only student that refused to attend any
of Mangano’s breakfast meetings. See Sutton, 2020 WL 6532937, at
*7 (emphasis added) (citing to the SAC). Here, the TAC alleges
that Mangano stated that Plaintiff was the only “female” who
refused to attend his breakfast meetings. (TAC ¶ 25) (emphasis
added). Yet, the TAC also alleges that, with the exception of
Plaintiff, the entire seminar class (consisting of both male and
female students) attended the meetings. (TAC ¶¶ 19-21, 46; Pl.
Opp. at 13; see also Galante Decl., Ex. 1.) Plaintiff’s use of
“female,” without more, is insufficient to support her claim of

gender-based discrimination.
“A complaint falls short . . . where, as in this case,
it ‘fails to incorporate any factual allegations that would
indicate how. . . [] gender [] played a role’ in the alleged
actions against the plaintiff.” Manolov, 952 F. Supp. 2d at 533
(quoting Scaggs v. N.Y. Dep’t of Educ., No. 06-CV-0799, 2007 WL
1456221, at *11 (E.D.N.Y. May 16, 2007)). Notably, Plaintiff does
not allege that she was treated differently because she was female;
rather, Plaintiff claims that she was treated differently from the
other men and women in her seminar class because she refused to
attend her supervisor’s breakfast meetings with the rest of the
class. The Court declines to infer gender-based discrimination

from such conclusory allegations. See Yusuf, 35 F.3d at 713.
Further, Plaintiff’s allegations with respect to her co-
teacher, non-party DelSeni, are insufficient to show that SBU
discriminated against Plaintiff based on her gender. Plaintiff
alleges that DelSeni referred to Plaintiff as a “princess” in a
September 16, 2017 text message to Mangano. (TAC ¶ 32.) She
alleges that Mangano had expressed concerns to DelSeni that
Plaintiff had not returned his calls, and DelSeni asked Mangano if
she should fill out paperwork for Plaintiff “or should [she] wait
in case she’s thrown out of the program.” (TAC ¶¶ 32-33.)
Plaintiff claims that “Mangano didn’t defend Plaintiff, his
student, because upon presumption, he was upset that Plaintiff, a

female, was putting him off/rebuffing him and hadn’t returned his
calls.” (TAC ¶ 32.) Such conclusory allegations -- involving a
third-party not employed by SBU -- cannot support a gender-based
discrimination claim against SBU. Indeed, Plaintiff does not
allege that Mangano responded to DelSeni’s comment other than to
confirm that Plaintiff had not returned his calls. (TAC ¶ 32.)
Therefore, Plaintiff’s new allegations fail to allege
any facts from which one could infer discriminatory intent on the
part of SBU. As such, Plaintiff fails to state a gender-based
discrimination claim under Title IX.
2. Sexual Harassment

Plaintiff also fails to allege sufficient facts with
regard to her sexual harassment allegations. Though Plaintiff’s
allegation that she subjectively perceived the environment to be
hostile is assumed true for purposes of this motion, Plaintiff’s
TAC fails to allege any facts demonstrating that she was required
to endure an environment that objectively was severely or
pervasively hostile. See Torres v. Pisano, 116 F.3d 625, 631 (2d
Cir. 1997) (“Conduct that is ‘merely offensive’ and ‘not severe or
pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find
hostile or abusive—is beyond Title VII’s purview.’” (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))).

Plaintiff conclusively alleges that after she refused to
meet Mangano off-campus for breakfast, he “reprimand[ed]” her, and
explained that her refusal was “concerning.” (TAC ¶ 25.)
Plaintiff further alleges that Mangano emailed, texted, and
telephoned her to arrange for another time to meet. (TAC ¶¶ 17-
18.) She claims that she felt uncomfortable receiving unwanted
phone calls and text messages, and perceived Mangano’s persistence
to meet as harassment. (TAC ¶ 18.) However, Plaintiff also
alleges that she refused to attend her supervisor’s meetings and
failed to respond to his attempts to communicate with her about
her student teaching. (TAC ¶¶ 18, 24-25, 30-31, 50.) As alleged,
Plaintiff’s co-teacher reminded Plaintiff that communicating with

Mangano was part of her duties as a student teacher. (TAC ¶ 30.)
Thus, while Plaintiff may have subjectively perceived her
supervisor’s attempts to communicate with her as harassment,
objectively, and as alleged in the TAC, Plaintiff’s supervisor was
attempting to meet with Plaintiff as he was meeting with the other
similarly-situated seminar students -- both male and female. (TAC
¶¶ 24, 25; Pl. Opp. at 13.)
Likewise, Plaintiff’s allegations that Mangano met with
her individually to discuss her performance following her student
teaching sessions, expressed concern that she had not responded to
his messages, “berated” her and made “demeaning” and “disparaging”
remarks about her choice to become a teacher (TAC ¶¶ 24, 43-45),

fail to demonstrate that she was subjected to a hostile environment
“because of her sex.” Gregory v. Daly, 243 F.3d 687, 694 (2d Cir.
2001) (There must be “factual circumstances that permit the
inference that plaintiff was subjected to a hostile [] environment
because of her sex.” (citing Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80-81 (1998))). Even drawing all reasonable
inferences in Plaintiff’s favor, the TAC does not plausibly allege
that her education environment was permeated with discrimination
based on her sex. Therefore, Plaintiff fails to allege a hostile
educational environment claim.
3. Quid Pro Quo

With regard to Plaintiff’s quid pro quo allegations, the
TAC fails to allege any facts demonstrating that she was subject
to sexual advances by Mangano or any other SBU official. See Bass
v. World Wrestling Fed’n Entm’t, Inc., 129 F. Supp. 2d 491, 500
(E.D.N.Y. 2001) (To state a sexual harassment claim under a quid
pro quo theory, a plaintiff must allege “that she was subject to
unwelcome sexual conduct.” (citation omitted)). Plaintiff’s
allegations that Mangano made numerous attempts to contact her,
shook her hand, and on one occasion touched her upper arm (TAC ¶¶
28-29, 34-35, 43-45, 48) are insufficient to show sexual conduct
to establish a quid pro quo claim. See Crandell v. New York
College of Osteopathic Medicine, 87 F. Supp. 2d 304, 318 (S.D.N.Y
2000) (“In order to state a claim for quid pro quo harassment,

plaintiff must allege that a tangible employment [or educational]
action resulted from a refusal to submit to a supervisor’s sexual
demands.” (internal quotation marks and citation omitted)).
Additionally, Plaintiff’s allegation that during a September 27,
2017 one-on-one class “Mangano held his pen” in a “sexually
suggestive” manner “to intimidate plaintiff” (TAC ¶ 47) is too
conclusory to state a quid pro quo claim under Title IX. See
Shalom v. Hunter Coll. of City Univ. of N.Y., 645 F. App’x 60, 62
(2d Cir. 2016) (summary order) (rejecting conclusory allegation
that professor “made multiple implied sexual advances”). Thus,
when construing the facts in the light most favorable to Plaintiff,
the TAC fails to state a quid pro quo claim pursuant to Title IX.
4. Notice of Alleged Discrimination

Even if Plaintiff had adequately pleaded discrimination,
and she has not, her apparent failure to notify SBU officials of
the alleged discrimination is fatal to her Title IX claim. A
plaintiff’s complaint to school officials must be specific
regarding the nature of the harassment to charge the school with
notice of an alleged Title IX violation. See, e.g., Manolov, 952
F. Supp. 2d at 533 (“Without a showing that [plaintiff’s]
complaints to [university officials] referenced alleged [ ] sexual
discrimination, and not merely generic perceived teaching
failures, the College cannot be charged with notice of an alleged
violation of Title [ ] IX.”)

The TAC does not meet this standard. Plaintiff alleges
that she made a “gender[-]based harassment complaint against
Mangano” on September 29, 2017. (TAC ¶¶ 51-52, 64.) However, as
noted in the Prior Order, the Court considers the email complaint
to Galante and observes that the email consists of general
complaints that Mangano criticized her performance and that he had
a “personal beef” with her for not attending his student teaching
breakfasts. Sutton, 2020 WL 6532937, at *10 (citing Galante Decl.,
Ex. 2.) Nowhere in Plaintiff’s email does she reference gender-
based discrimination or sexual harassment. Rather she states, “I
do not think other student teachers are being treated the way I am
being treated. [Mangano is] holding it against me that I didn’t

meet with him over the summer.” (See Galante Decl., Ex. 2.)
In the TAC, Plaintiff alleges that following her removal
from student teaching, on October 17, 2017, Plaintiff emailed
Jordan stating, “[d]id Dr. Galante happen to mention to you that
I had made a complaint to her about a male professor who was
harassing me.” (TAC ¶ 73) However, this non-specific reference
to her September 29, 2017 email complaint fails to demonstrate
that an official at SBU was put on actual notice of gender-based
harassment by Galante. See Murray v. N.Y. Univ. College of
Dentistry, 57 F.3d 243, 250 (2d Cir. 1995) (finding no reasonable
basis to infer notice where complaint lacked allegations that
plaintiff informed university officials about sexual connotations

or sexual harassment). Similarly, Plaintiff’s general allegation
that “Galante knew Plaintiff was a female and Mangano was a male
and that therefore any complaint about his abusive behavior would
have been considered gender based” is wholly insufficient to infer
SBU’s notice of gender discrimination or harassment. (TAC ¶ 98.)4

4 The Court notes that paragraph 98 of the TAC is incorrectly
marked as paragraph 96.
Because the TAC fails to allege gender-based
discrimination or harassment, or that SBU had knowledge of the
alleged discrimination, Plaintiff’s renewed pleading fails to
withstand Defendants’ motion to dismiss. Thus, Plaintiff’s Title
IX discrimination claim against SBU is DISMISSED with prejudice.
5. Retaliation

The TAC fails to state a Title IX retaliation claim
because Plaintiff has not alleged facts plausibly suggesting that
she engaged in a protected activity under Title IX, namely that
she opposed discrimination proscribed by Title IX.
To state a claim for retaliation, a plaintiff must first
establish a prima facie case by demonstrating: “(1) protected
activity; (2) knowledge by the defendant of the protected
activity; (3) adverse school-related action; and (4) a causal
connection between the protected activity and the adverse
reaction.” Papelino, 633 F.3d at 91; Sutter v. Dibello, No. 18-
CV-0817, 2019 WL 4195303, at *14 (E.D.N.Y. Aug. 12, 2019)

(“[C]omplaints must be sufficiently specific to make clear that
the [plaintiff] is complaining about conduct prohibited by the
applicable discrimination statute.”), report and recommendation
adopted, 2019 WL 4193431 (E.D.N.Y. Sept. 4, 2019). General
complaints of harassment and bullying are insufficient to state a
prima facie case of retaliation. See, e.g., Johnson v. City Univ.
of N.Y., 48 F. Supp. 3d 572, 577 (S.D.N.Y. 2014) (to establish a
retaliation claim, the plaintiff must have complained about
discrimination based on a protected characteristic —- that is,
conduct in violation of the underlying statute). Even where a
plaintiff believes she is complaining of conduct that violated
Title IX, “a mere subjective good faith belief is insufficient;

the belief must be reasonable and characterized by objective good
faith.” Id. (emphasis in original); Drumm v. SUNY Geneseo Coll.,
486 F. App’x. 912, 914 (2d Cir. 2012) (“[P]laintiff’s allegations
that her supervisor ‘berated’ her and made other harsh comments
[ ] amount only to general allegations of mistreatment, and do not
support an inference that plaintiff had a reasonable good faith
belief that she was subject to gender discrimination.” (quotation
marks omitted)).
Like her SAC, Plaintiff’s TAC fails to adequately allege
that she had a reasonable, good faith belief that she challenged
conduct constituting gender discrimination. As discussed supra,
Plaintiff’s September 29, 2017 complaint to Galante did not

reference gender-based discrimination or sexual harassment.
Rather, Plaintiff generally complained about “bullying,” that
Mangano stated that her “teaching was horrible,” that he “make[s]
[her] feel bad about [herself] and [her] decision to pursue
teaching,” and make[s] [her] want to cry.” (Galante Decl., Ex.
2.) Thus, Plaintiff could not reasonably have believed that she
complained of conduct prohibited by Title IX. In fact, during an
October 11, 2017 conversation with Galante, Plaintiff acknowledged
that her September 29 email was “an expression of her emotional
reactions” and that her claims about Mangano’s intentions were
“based on feelings not on actions.” (Galante Decl., Ex. 5.)
Similarly, Plaintiff’s misplaced reliance on her October

19, 2017 email to Galante, Lindblom, and Jordan (following her
dismissal from student teaching) does not save her claim. That
email states, “[a]nd why you are coercing me to sign a contract in
order for me to be placed again? Can you please tell me what
specifically did I do wrong to be suspended? Why am I being
suspended? This is discrimination & differential treatment.” (TAC
¶ 75; Galante Aff., Ex. O.) Wholly lacking from Plaintiff’s email
is any indication that Plaintiff believed she was being treated
differently because of her gender. See Moore v. City of N.Y., 745
F. App’x 407, 409 (2d Cir. 2018) (“A mere mention of feeling
‘discriminated against’ is not enough to put an employer on notice
of a protected complaint if ‘nothing in the substance of the

complaint suggests that the complained-of activity is, in fact,
unlawfully discriminatory.’” (quoting Kelly v. Howard I. Shapiro
& Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir.
2013))). Plaintiff’s email demonstrates that Plaintiff believed
she was being “suspended” because “Dr. Mangano had a bias against
[her] from day one because [she] did not attend his summer
breakfast,” and not because of gender bias. (See Galante Decl.,
Ex. O.) Therefore, as Plaintiff fails to plead that she engaged
in a protected activity, she fails to state a Title IX retaliation
claim.5 As such, Plaintiff’s Title IX retaliation claim is
DISMISSED with prejudice.
B. Plaintiff’s Section 1983 Claims Must Be Dismissed

The TAC re-asserts Section 1983 claims against SBU and
the individually-named defendants based on alleged violations of
the First Amendment and due process and equal protection under the
Fourteenth Amendment.6 Defendants argue that the Section 1983
claims against the individually-named Defendants fail under the
doctrine of qualified immunity and that Plaintiff fails to allege
any facts regarding Defendant Stanley’s personal involvement.

5 The TAC also fails to allege the requisite causal connection
between her complaint to Galante and her dismissal from SBU’s
program. Rather, SBU had a non-discriminatory basis for
Plaintiff’s dismissal: her poor performance evaluations, lack of
professionalism, and failure to complete the reflection
assignment. (See Jordan Decl., Ex. 3; TAC ¶ 115.) Plaintiff
acknowledged that she had “issues” with teaching, that did not
arrive to school “on time,” and was leaving early. (See Galante
Decl., Ex. 5.) Additionally, Plaintiff received a negative
performance evaluation from her co-teacher. (Galante Decl., Ex.
5.)

6 In opposition, Plaintiff contends that Taber and Stanley, “who
both have resigned from Stony Brook and moved out of state, are
automatically replaced in their official capacity by their
successors[.]” (Pl. Opp. at 6.) However, the Prior Order
dismissed with prejudice Plaintiff’s Section 1983 claims against
SBU and the individual Defendants in their official capacities
pursuant to Eleventh Amendment immunity. Sutton, 2020 WL 6532937,
at *10-12. Therefore, the Court only considers the Section 1983
claims against Defendants in their individual capacities.
(Defs. Br. at 12.) However, because the Court finds that the TAC
fails to allege any constitutional claims, it need not determine
whether the individual Defendants are entitled to invoke the
defense of qualified immunity or whether Plaintiff adequately
pleads Stanley’s personal involvement. See Walczyk v. Rio, 496

F.3d 139, 154 (2d Cir. 2007) (“When a defendant . . . invokes
qualified immunity . . ., a court must first consider [whether] .
. . the facts, viewed in the light most favorable to the plaintiff,
show that the [defendant’s] conduct violate[d] a constitutional
right[.] If the answer to this question is no, ‘there is no
necessity for further inquiries concerning qualified immunity.’”
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001))).
1. First Amendment Retaliation7

In light of Plaintiff’s pro se status, the Court
evaluates Plaintiff’s First Amendment retaliation claim against
the individually-named Defendants pursuant to Section 1983. A
plaintiff asserting a First Amendment retaliation claim “must

7 The TAC appears to allege a First Amendment claim against SBU.
(See TAC ¶ 223.) However, the First Amendment does not directly
provide a basis for damages, but is usually enforced against a
state actor through Section 1983. Sank v. City Univ. of N.Y., No.
10–CV–4975, 2011 WL 5120668, at *6 (S.D.N.Y. Oct. 28, 2011)
(“Because [ ] Section 1983[ ] provides a remedy for alleged
constitutional violations, [plaintiff] cannot base claims directly
on the First, Fourth and Fourteenth Amendments.”) Further, as
discussed supra, Note 6, Eleventh Amendment immunity precludes
Plaintiff’s Section 1983 claims against SBU.
advance non-conclusory allegations establishing: (1) that the
speech or conduct at issue was protected, (2) that the defendant
took adverse action against the plaintiff, and (3) that there was
a causal connection between the protected speech and the adverse
action.” Garcia v. SUNY Health Scis. Ctr. of Brooklyn, 280 F.3d

98, 106–07 (2d Cir. 2001) (citations omitted). With regard to the
causal connection element, to survive a motion to dismiss, a
plaintiff must allege facts to show that the adverse action would
not have been taken absent the plaintiff’s protected speech. See
Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). A retaliation
claim is not plausible where the pleading indicates there was an
alternative, non-retaliatory motive for the defendant’s conduct.
See Holmes v. Poskanzer, 342 Fed. App’x. 651, 653 (2d Cir. 2009);
Grossi v. City of N.Y., No. 08–CV–1083, 2009 WL 4456307, at *8
(E.D.N.Y. Nov. 30, 2009) (dismissing retaliation claim for lack of
plausibility where plaintiffs’ pleading indicated that there was
an alternate, non-retaliatory motive for the defendant’s conduct).

Plaintiff alleges that “[d]irectly following [her]
September 29, 2017 gender[-]based harassment complaint about
Supervisor Mangano, Defendants began a campaign to silence
Plaintiff for speaking out.” (TAC ¶ 52.) Plaintiff also claims
that she was removed from student teaching one day before her
scheduled exam because Defendants “wanted to punish Plaintiff for
speaking out.” (TAC ¶ 123.) She alleges that Galante’s contract
and reflection assignment constituted “a means to prevent
Plaintiff from exercising her right to free speech/speaking out
and freedom of expression.” (TAC ¶ 113.) She further claims that
SBU “chill[ed] her free speech” when she was told to “cease
communication” with the English Department, not to attend seminar

class during her appeal process, and when her university email
account was disabled. (TAC ¶ 90; Pl. Opp. at 20-21.)
However, the TAC fails to allege a causal connection
between her email complaint to Galante and her dismissal from SBU.
As noted in the Prior Order, “Defendants had non-retaliatory
reasons for Plaintiff’s dismissal from SBU, namely: Plaintiff’s
lack of professionalism and preparedness, excessive lateness, and
her failure to complete the reflection assignment and refusal to
agree to the standards of professionalism outlined in the student
teaching contract.” Sutton, 2020 WL 6532937 at *13. Indeed,
Plaintiff concedes that she failed to complete the reflection
assignment or sign the student teaching contract. (TAC ¶ 115.)

Further, a disinterested Appeals Committee –- the Graduate Council
Appeals Committee (“GCAC”) -- unanimously concluded that Plaintiff
was rightfully dismissed. (Jordan Decl., Ex. 3.) The GCAC report
attached to the December 19, 2017 appeal denial letter states that
Plaintiff “did not meet program requirements,” and that “other
students with similar failure to perform [ ] were treated in a
similar manner.” (Jordan Decl., Ex. 3.) Thus, non-retaliatory
reasons for Plaintiff’s dismissal from the Education Program and
SBU exists and Plaintiff’s retaliation claim is not plausible.
See Garcia, 280 F.3d at 107 (no causal connection between student’s
letter to school official and his subsequent dismissal from school
because, inter alia, numerous school officials approved student’s

dismissal based on his “persistent academic deficiencies”).
Moreover, Plaintiff’s allegation that Defendants
dismissed her from student teaching one day prior to her exam “to
punish Plaintiff for speaking out by stopping her from becoming a
teacher” is wholly speculative. (TAC ¶¶ 121, 123, 240); see Geagan
v. City Univ. of N.Y., No. 09-CV-3271, 2011 WL 3370395, at *12-13
(S.D.N.Y. July 14, 2011) (a student’s belief that her appeal to
re-enroll in nursing program was denied in retaliation for her
exercise of her free speech rights was wholly speculative).8
Because the TAC fails to allege additional facts demonstrating the
requisite causal connection, Plaintiff’s First Amendment
retaliation claim is DISMISSED with prejudice.

8 Additionally, Plaintiff’s allegation that DelSeni, her co-
teacher, “chill[ed] Plaintiff’s free speech” when she prevented
Plaintiff from informing her students why she was leaving mid-
semester fails to allege a retaliation claim for the simple reason
that DelSeni is not a defendant. (TAC ¶ 66.)
2. Equal Protection

“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should
be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985) (quoting U.S. Const. amend. XIV, § 1).
Although the standards for equal protection and Title IX “may not
be wholly congruent,” Fitzgerald v. Barnstable Sch. Comm., 555
U.S. 246, 247 (2009), in either case “the plaintiff must show that
the defendant discriminated against her, that the discrimination
was intentional, and that discrimination was a motivating factor
for the defendant’s actions.” Chandrapaul v. City Univ. of N.Y.,
No. 14-CV-790, 2016 WL 1611468, at *17 (E.D.N.Y. Apr. 20, 2016)
(citing Yusuf, 35 F.3d at 714).
Plaintiff’s equal protection claim against Defendants
must be dismissed because it is based on the same allegations that

support her Title IX discrimination claims. R.S. v. Bd. of Educ.
of Hastings-On-Hudson Union Free Sch. Dist., 371 Fed. App’x. 231,
234 (2d Cir. 2010) (where a plaintiff alleges parallel Title IX
and equal protection claims, they may fail for the same reason).
As discussed supra, the TAC does not plausibly allege facts
suggesting that Defendants’ discriminated against Plaintiff on the
basis of her gender. Thus, Plaintiff’s equal protection claim is
DISMISSED with prejudice.
3. Procedural Due Process

The TAC fails to allege additional facts that
demonstrate any of the individually-named defendants violated
Plaintiff’s procedural due process rights. First, to the extent
that Plaintiff continues to assert that her dismissal from SBU was
non-academic, and therefore disciplinary dismissal standards
should apply, the Court disagrees. As discussed at length in the
Prior Order, Plaintiff’s dismissal was academic because it was
based on her student teaching performance and professionalism.
See Sutton, 2020 WL 6532937, at *15 (citing Wolff v. State Univ.
of N.Y. Coll. at Cortland, No. 13-CV-1397, 2016 WL 9022503, at *18
(N.D.N.Y. Feb. 5, 2016) (upholding dismissal of student as academic
due to faculty concerns about his professionalism and suitability
to be a teacher)). Nothing in the TAC changes this conclusion.
As such, the Court analyzes the TAC under the “far less stringent”

procedural requirements of due process for academic dismissals.
Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d
178, 192 (2d Cir. 2015)) (quoting Bd. of Curators of Univ. of Mo.
v. Horowitz, 435 U.S. 78, 86 (1978)).
“In the context of an academic dismissal a student is
afforded the procedural process required by the Fourteenth
Amendment where (1) the school has ‘fully informed [the student]
of the faculty’s dissatisfaction with [the student’s] progress and
the danger that this posed to timely graduation and continued
enrollment,’ and (2) ‘[t]he ultimate decision to dismiss [the
student] was careful and deliberate.’” Dean, 804 F.3d at 191
(quoting Horowitz, 435 U.S. at 85). Moreover, “[c]ourts do not

intrude on the authority of colleges to dismiss students for purely
academic reasons.” Murray v. N.Y. Univ. College of Dentistry, No.
93-CV-8771, 1994 WL 533411, at *4 (S.D.N.Y. Sept. 29, 1994), aff’d.
57 F.3d 243.
Upon review of the TAC, the allegations demonstrate that
she was provided with more process than that which was due. To be
sure, Defendants provided Plaintiff with notice of her
deficiencies, an opportunity to remedy those deficiencies, and a
warning of the consequences for failure to cure the deficiencies.
(See Galante Decl., Exs. 5 & 7.) Plaintiff admits that she refused
to meet to Galante’s milestones, failed to complete a reflection
assignment, and declined to sign a student teaching contract. (TAC

¶ 115, Ex. B.) Additionally, the decision to dismiss Plaintiff
from SBU was confirmed by a disinterested appeal panel -- providing
Plaintiff with more process than that which is due for academic
dismissals. (See Jordan Decl., Ex. 3 (“The program has provided
evidence that the student did not meet program requirements, thus
the dismissal was not arbitrary. There is evidence that other
students with similar failure to perform (e.g., lateness/absence
and poor teaching reviews) were treated in a similar manner: given
an opportunity to improve, and if they rejected the opportunity or
failed to improve, they faced dismissal from the program.”)); see
Horowitz, 435 U.S. at 92 (“Courts are particularly ill-equipped to
evaluate academic performance.”)

As discussed in the Prior Order, Plaintiff’s allegations
that she was not afforded a hearing or the opportunity to call
witnesses are irrelevant because it is well-established that “a
student facing academic dismissal is not entitled to a hearing or
to cross examine witnesses.” McCann v. Univ. at Buffalo, No. 13-
CV-0381, 2016 U.S. Dist. LEXIS 76829, at *38 (W.D.N.Y. June 10,
2016); See Horowitz, 435 U.S. at 90.
Therefore, the TAC fails to allege any facts that
plausibly show a procedural due process violation arising out of
the decision to remove or dismiss Plaintiff from the Education
Program and SBU.9 This claim is thus DISMISSED with prejudice.

9 Plaintiff also alleges that the Registrar at SBU violated FERPA
by failing to “honor[] a FERPA request for Plaintiff to see
documents used to expel her.” (TAC ¶ 241.) Though this claim is
not against any individual Defendant, the Court notes that FERPA
violations are not actionable under Section 1983. Gonzaga Univ.
v. Doe, 536 U.S. 273 (2002). Thus, to the extent alleged, this
claim is DISMISSED.
4. Substantive Due Process

The TAC also fails to state a claim for a violation of
substantive due process. Plaintiff asserts that she was deprived
of substantive due process because she was denied the right to
continue her education and was removed from student teaching one
day before a scheduled professional qualifying video EdTPA exam.
(TAC ¶¶ 239-40.) She claims that “Defendants deprived Plaintiff
substantive due process by blocking her form participating in the
field of teaching, her chosen profession,” because she is
“deficient of the necessary qualifications required for employment
as a teacher in New York.” (TAC ¶ 257.) The Court disagrees.
“To state a substantive Due Process claim, a plaintiff
must establish that a protected liberty or property interest was
infringed in an arbitrary or irrational manner that shocks the
conscience.” Marino v. City Univ. of N.Y., 18 F. Supp. 3d 320,
338 (E.D.N.Y. 2014) (citations omitted). Though “there is no
substantive due process right to public education,” Bryant v. N.Y.

State Educ. Dep’t, 692 F.3d 202, 217-18 (2d Cir. 2012), under
certain circumstances, courts have recognized a substantive due
process right to pursue a chosen career. Toussie v. Cnty. of
Suffolk, 806 F. Supp. 2d 558, 579-80 (E.D.N.Y. 2011) (citations
omitted). To state a claim, “one must have no ability to practice
one’s profession at all.” Id. at 579.
Plaintiff’s allegations cannot meet this standard. As
discussed supra, Plaintiff was provided with the opportunity to
complete a reflection assignment and execute a contract that would
have afforded her the ability to continue student teaching the
following semester. (See Galante Decl., Exs. 3 & 5.) Plaintiff

refused that offer. (TAC ¶ 115.) Furthermore, Plaintiff cannot
argue that she is unable to pursue a teaching career because there
are no allegations that Defendants prevented her from pursuing her
chosen profession elsewhere. See Rodriguez v. Margotta, 71 F.
Supp. 2d 289, 296 (S.D.N.Y. 1999) (“It is well settled that one
must have no ability to practice one’s profession at all in order
to state a claim for deprivation of a liberty interest.”)
In sum, accepting the TAC’s allegations as true and
construing them in the light most favorable to the Plaintiff,
Plaintiff has failed to allege that Defendants precluded her from
her chosen career. Therefore, her substantive due process claim
is DISMISSED with prejudice.

V. Leave to Amend
“When a motion to dismiss is granted, the usual practice
is to grant leave to amend the complaint,” Hayden v. Cnty. of
Nassau, 180 F.3d 42, 53 (2d Cir. 1999), unless doing so would be
futile, Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.
Supp. 2d 382, 399 (S.D.N.Y. 2002). The Court declines to grant
Plaintiff leave to file a fourth amended complaint because doing
so would be futile. Plaintiff has already filed four complaints
and, in doing so, has failed to cure the deficiencies identified
by the Court in the Prior Order. Ercole v. LaHood, No. 07–CV–
2049, 2011 WL 1205137, at *15 (E.D.N.Y. Mar.29, 2011) aff’d, 472
F. App’x 47 (2d Cir. 2012) (holding that the Court need not grant

pro se plaintiffs leave to amend when it previously has been given
and the plaintiff has “faile[ed] to cure the deficiencies
previously identified by the Court.”) Therefore, in its
discretion, the Court denies further leave to amend.
CONCLUSION
For the reasons stated herein, Defendants’ motion to
dismiss (ECF No. 65) is GRANTED in its entirety, and Plaintiff’s
claims are DISMISSED with prejudice. Leave to amend is DENIED as
futile. The Clerk of the Court is directed to enter judgment
accordingly and mark this case CLOSED.
Because Plaintiff registered for and consented to
electronic service of Court Orders in this matter (ECF No. 50),

she will not receive a copy of this Memorandum & Order by mail.

SO ORDERED.

/s/ JOANNA SEYBERT________
Joanna Seybert, U.S.D.J.

Dated: August 18 , 2021
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306727. Public record. Not legal advice.