# Peek v. Duanesburg Central School District

> District Court, N.D. New York · November 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10316218

## Case

- **Court:** District Court, N.D. New York
- **Decided:** November 29, 2023
- **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/10316218

## How later opinions describe it (automated extraction)

- noting that “in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or [non-prosecution] of another”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

NICOLE M. PEEK, JEREMY J. MING & o/b/o
Child(ren), JOHN & JANE DOE- as same or similar
in class,

1:23-cv-00388(AMN/ML)
Plaintiffs

v.

DUANESBURG CENTRAL SCHOOL DISTRICT
(and/or any aliases), and any unnamed
employee(s)/agent(s)/school district(s) also responsible
for same or similar cause of action, CELESTE JUNGE
(in all capacities), DR. JAMES NIEDERMEIER (in all
capacities), SCHENECTADY COUNTY
DEPARTMENT OF SOCIAL SERVICES (Child
Protective Service (CPS)), JOHN AND JANE DOE (in
all capacities), and any un-named
corporation/entity/agency found liable, any other
known/unknown accommodation and/or relevant parties.

Defendants.

APPEARANCES: OF COUNSEL:

NICOLE M. PEEK
3268 E Lydius St.
Schenectady, NY 12303
Plaintiff pro se

JEREMY J. MING
8298 Duanesburg Rd (#6)
Delanson, NY 12053
Plaintiff pro se

GIRVIN & FERLAZZO, P.C. PATRICK J. FITZGERALD, ESQ.
20 Corporate Woods Boulevard DANIEL S. L. RUBIN, ESQ.
Albany, NY 12211-2350
Attorneys for Defendants Duanesburg Central
School District, Dr. James Niedermeier, and
Celeste Junge
GOLDBERG SEGALLA, LLP JONATHAN M. BERNSTEIN, ESQ.
8 Southwoods Boulevard, Suite 300
Albany, NY 12211
Attorneys for Defendant Schenectady
County Department of Social Services
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On June 2, 2023, Plaintiffs Nicole M. Peek (“Plaintiff” or “Peek”), Jeremy Ming
(“Plaintiff” or “Ming”), and “(BT, CM) (John and Jane Doe)”1 (collectively “Plaintiffs”) filed an
Amended Complaint against Defendants Duanesburg Central School District (“Duanesburg”),
Duanesburg Superintendent of Schools Dr. James Niedermeier (“Superintendent Niedermeier”),
and Celeste Junge, Secretary to the Superintendent at Duanesburg (“Junge”) (collectively the
“School District Defendants”), and Defendant Schenectady County Department of Social Services
(“DSS” or “Defendant”),2 alleging multiple statutory causes of action. See Dkt. No. 14.
Defendants moved to dismiss Plaintiffs’ Amended Complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Dkt. Nos. 23, 26 (the “Motions”).3 Plaintiffs filed an
Opposition to Defendants’ Motions. Dkt. No. 35.4 For the reasons set forth below, Defendants’

1 It appears from Plaintiffs’ Opposition that “BT” and “CM” refer to Plaintiffs’ minor children.
Dkt. No. 35 at 2-3.
2 The “School District Defendants” and the “DSS” are collectively referred to as “Defendants.”
3 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
4 Plaintiffs’ Opposition was originally filed as Dkt. No. 34. Plaintiffs refiled their Opposition to
include an attached exhibit. See Dkt. No. 35. The Court is also in receipt of Plaintiffs’
“attachments of further evidence,” filed on October 18, 2023, Dkt. No. 36, the School District
Defendants’ “Memorandum of Law in Further Support of Motion to Dismiss or, in the Alternative
to Strike,” filed on November 3, 2023, Dkt. No. 38, and Plaintiffs’ Sur-Reply Memorandum of
Law in “Support of Further Answers and Objections,” filed on November 16, 2023, Dkt. No. 39.
Motions are granted in their entirety, and the Amended Complaint is dismissed with prejudice.5
II. BACKGROUND6
The following facts are drawn from the Amended Complaint and are assumed to be true
for purposes of ruling on the Motions. See Div. 1181 Amalg. Transit Union-N.Y. Emps. Pension
Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).

Plaintiffs “at one point had [a] child enrolled in [Duanesburg] and decided to homeschool
[the child] while building a family church with a private religious school [referred to as the “Valley
of Baca”] held in Trust separate from home with its members.” Dkt. No. 14 at ¶ 1.7 Plaintiffs
allege that they “informed [the] District or agents thereof since the beginning of [their] intentions
and eventually had met [their] goals yet [the] district was still insistent on certain alleged
‘requirements’ and made verbal threats to call Child [P]rotective [S]ervices and slander if [they]
did not continue filling out arduous reports with minimal relevance to actual development.” Id. at
¶ 7.
On March 7, 2023, Junge started an email correspondence with Peek, asking Peek to

5 The School District Defendants also moved, in the alternative, to strike Plaintiffs’ Amended
Complaint pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. Dkt. No. 23. A court
“may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). Because the Court is granting the School District Defendants’ Motion to
dismiss, the Court need not address the motion to strike.
6 Because Plaintiffs are proceeding pro se, the Court construes Plaintiffs’ Amended Complaint
liberally. See Washington v. Reilly, 226 F.R.D. 170, 171 (E.D.N.Y. 2005) (“It is well-settled that
the Court must read Plaintiff’s pro se Amended Complaint liberally . . . Moreover, pro se litigants
are afforded a wide degree of latitude with regard to their submissions, as the Court construes their
papers to raise the strongest arguments that they suggest.”) (internal quotation marks and citations
omitted).
7 Plaintiffs’ Opposition clarifies that “B.T. [a]ttended Duanesburg . . . in 2020 and virtually in 2021
and 2022 when . . . [P]laintiffs decided to ‘homeschool….’” Plaintiffs state that they gave a letter
of intent to homeschool in February 2022. They further state that “the following School Year of
2023 our intention was to use our family chapel to designate/donate a space for furthering the
education of [our children].” Dkt No. 35 at 2.
“[p]lease advise the private school your son is attending so we can update our files.” Id. at 26.
That same day, Peek replied that “[t]he Private Religious school [her son] is attending is called
The Valley of Baca.” Id. at 27.8 On March 8, 2023, Junge responded, “Thank you for the
information. We will update our file.” Id. at 28. On March 18, 2023, Peek said, “it’s my
understanding that we’re entitled to some reimbursements under state law for the homeschooling

period” and asked, “[w]ho should I send the invoice to?” Id. at 30. Plaintiffs allege that despite
a request for reimbursement, they were not reimbursed for their homeschooling expenses. Id. at
¶¶ 24-25. Plaintiffs allege that they sent “all materials” to Superintendent Niedermeier,9 and the
School District Defendants “made a [k]nowingly [f]alse [r]eport to . . . Social Services and [the]
guidance office at” Duanesburg. Dkt. No. 35 at 2-3.10
The Amended Complaint further alleges that the “Defendants[’] [f]raudulent and
prejudicial claims caused [two] separate vehicles of Schenectady County Sherriff’s Department to
go to one of Plaintiff[s’] place of business and knock on every occupied door therein in an attempt
to locate Plaintiff(s).” Dkt. No. 14 at ¶ 15. Specifically, Plaintiff Ming alleges that on March 24,

2023, “two Schenectady [C]ounty sheriff[’s] officers and two people that [Ming] imagined were
some sort of social workers” knocked on his door and “proceeded to tell [Ming] that they received
a report that [the] children are being neglected of an education and that [the children] are

8 Plaintiffs clarified that the “Valley of Baca” was their “home family chapel.” See Dkt. No. 35 at
2.

9 Plaintiff Peek’s “Affidavit of Truth” also states that she notified Duanesburg and “Capital Region
Boces” that her son was attending a private religious school and while she “[r]ecently stopped
sending [] reports to Capital Region Boces,” she “continued to write them and track his academic
progress for his schooling and development.” Dkt. No. 35 at 38.
10 The School District Defendants’ Response to Plaintiffs’ Opposition clarifies that the School
District Defendants made a hotline call to the Office of Children and Family Services because
Plaintiffs allegedly were not complying with their home-schooling requirements. Dkt. No. 38 at
4.
malnourished and a welfare check should be done on them.” Id. at 37. Ming asserts that he
“allowed the social workers to see [the children] and [he] took pictures of all the stored food [as
they requested] … but [he] would not allow them entry.” Dkt. No. 35 at 3.
Peek emailed Junge regarding the School District calling the Office of Children and Family
Services. Dkt. No. 35 at 9. On March 31, 2023, Superintendent Niedermeier responded by email

to Peek stating, “[a]s a mandated reporter, it is my obligation to notify the Office of Children and
Family Services when families do not follow through with home schooling requirements.” Id.
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests
the legal sufficiency of a party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d
Cir. 2007). In considering legal sufficiency, a court must accept as true all well-pled facts in the
complaint and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

omitted). Although a court’s review of a motion to dismiss is generally limited to the facts
presented in the pleadings, the court may consider documents that are “integral” to the pleadings
even if they are neither physically attached to, nor incorporated by reference into, the pleadings.
See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time
Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to show that the pleader is entitled to
relief,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, a pleading’s “[f]actual allegations must be enough to raise a right of relief above the
speculative level,” id. at 555 (citation omitted), and present claims that are “plausible on [their]
face,” id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). “Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”

Id. (quoting Twombly, 550 U.S. at 557). Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff
has “not nudged [its] claims across the line from conceivable to plausible, the . . . complaint must
be dismissed.” Id. at 570.
“[I]n a pro se case . . . the court must view the submissions by a more lenient standard than
that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2003) (quoting, inter alia, Haines v. Kerner, 404 U.S. 519, 520 (1972)). The
Second Circuit has held that courts are obligated to “‘make reasonable allowances to protect pro
se litigants’” from inadvertently forfeiting legal rights merely because they lack a legal education.

Id. at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
IV. DISCUSSION
A. Plaintiffs’ Pro Se Representation of Their Children
Defendants argue that Plaintiffs cannot represent their children as pro se litigants. See Dkt.
No. 23-1 at 11; Dkt. No. 26-1 at 9. In response, Plaintiffs argue that they “[s]omewhat [a]gree[]
however to say a Parent, in no fact, may represent their children would be an erroneous
conclu[sion] of law and well established general rules.” Dkt. No. 35 at 5. Contrary to Plaintiffs’
assertion, it is well-established in the Second Circuit that pro se parents cannot bring claims on
behalf of their minor children. See, e.g., Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284
(2d Cir. 2005) (“It is thus a well-established general rule in this Circuit that a parent not admitted
to the bar cannot bring an action pro se in federal court on behalf of his or her child.”) (citing
Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)); Murphy v.
Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 201 (2d Cir. 2002) (“In this Circuit, a non-
attorney parent is precluded from representing his or her child in federal court.”) (citation omitted);

Ziegler on behalf of G.S. v. Multer, No. 1:18-CV-880 (GLS/DJS), 2018 WL 4610666, at *2
(N.D.N.Y. Aug. 27, 2018) (same).
Accordingly, Defendants’ Motions to dismiss Plaintiffs’ claims to the extent they are
brought on behalf of Plaintiffs’ minor children, “BT” and “CM,” are granted.
B. DSS as a Proper Party
DSS argues that it is not a proper party in this action. Dkt. No. 26-1 at 7-8. “Under Federal
Rule of Civil Procedure 17(b), an entity is suable in federal court only if it would be suable under
the laws of the state where it was created.” Omnipoint Commc’ns, Inc. v. Town of Grange, 658 F.
Supp. 2d 539, 552 (S.D.N.Y. 2009) (citing Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory

Council, 506 U.S. 194, 214 (1993)). Therefore, New York law governs whether DSS can be sued
as a defendant in this Court.
“In New York, agencies of a municipality are not suable entities” because “departments
that are merely administrative arms of a municipality have no separate legal identity apart from
the municipality and therefore cannot be sued.” Omnipoint Commc’ns, 658 F. Supp. 2d at 552
(citations omitted). DSS is an administrative agency of Schenectady County, and therefore is not
a proper party to be sued. See Schweitzer v. Crofton, 935 F. Supp. 2d 527, 551-52 (E.D.N.Y. 2013)
(dismissing Suffolk County Department of Social Services as an improper party); In re Dayton,
786 F. Supp. 2d 809, 818 (S.D.N.Y. 2011) (dismissing Orange County Department of Social
Services as an improper party). Accordingly, the Court grants DSS’s Motion to dismiss on this
basis.11
C. School District Defendants’ Immunity from Liability
The School District Defendants argue that they are immune from liability because after
Plaintiffs “failed to abide by various statutory requirements governing home schooling,” including

failing to submit a quarterly progress report, the School District Defendants made a hotline call to
the Office of Children and Family Services “in accordance with their mandatory reporting
requirements under New York Social Services Law.” Dkt. No. 38 at 2. In Response, Plaintiffs
argue that a late quarterly report “is not neglect,” they were not required to send quarterly reports
because Plaintiffs’ intent was “no longer to homeschool” the children, the actions of Defendants
were not “in ‘good faith’ [because] the child [was not] in any imminent danger,” and Defendants
did not follow the procedures outlined in 8 NYCRR § 100.10 before contacting the Office of
Children and Family Services. Dkt. No. 39 at 4-9.
New York Social Services Law (“Social Services Law”) § 413 requires a school official to
report suspected educational neglect12 when “reasonable cause exists to suspect that a child is

abused or maltreated where a person comes before them in their professional or official capacity
and states from personal knowledge facts, conditions, or circumstances which, if correct, would

11 Because the Court finds that DSS is not a proper party, the Court will not address its additional
argument regarding Plaintiffs’ failure to file a notice of claim. Dkt. No. 26-1 at 8.
12 Pursuant to New York’s “home instruction” regulations set forth in 8 NYCRR § 100.10(g),
parents are required to submit quarterly reports to the school district for each child that is
homeschooled. Evidence of educational neglect includes a parent failing to comply with the
regulations in 8 NYCRR § 100.10, including a “failure to maintain appropriate records, [and] file
required reports.” See In re William AA., 807 N.Y.S.2d 181, 183 (3d Dep’t 2005).
render the child an abused or maltreated child.”13 A school official who fails to report “suspected
child abuse or maltreatment . . . shall be guilty of a class A misdemeanor.” Social Services Law
§ 420.
Additionally, pursuant to Social Services Law § 419, a school district that complies in good
faith with its reporting requirement is entitled to immunity. See Schlar v. Fayetteville, 753

N.Y.S.2d 636, 637 (4th Dep’t 2002) (finding that a school district was immune from liability for
good faith compliance with reporting requirements where it reported suspected educational neglect
and “plaintiffs failed to present sufficient factual allegations that defendants were motivated by
actual malice in making the report”).14
Here, Plaintiffs allege that they notified the School District Defendants of their intentions
to homeschool their son and then have their son receive his education at a private religious school,
the “Valley of Baca.” Dkt. No. 14 at ¶¶ 1, 7. Plaintiff Ming alleges in his sworn affidavit that
“two Schenectady [C]ounty sheriff[’s] officers and two [social workers] … proceeded to tell [him]
that they received a report that [the] children are being neglected of an education and that [the

children] are malnourished and a welfare check should be done on them.” Dkt. No. 14 at 37. After
Peek emailed Junge regarding Duanesburg’s hotline call to the Office of Children and Family
Services, see Dkt. No. 35 at 9, Superintendent Niedermeier emailed Peek explaining that “[a]s a
mandated reporter, it is my obligation to notify the Office of Children and Family Services when
families do not follow through with home schooling requirements,” see id. The Court finds that

13 Reports must be made to the Central Register of the Child Abuse and Maltreatment hotline by
dialing 1-800-342-3720. Dkt. No. 28 at 3 (citing Social Services Law § 422).
14 Social Services Law § 419 states that “[a]ny person, official, or institution participating in good
faith in . . . making of a report . . . or the disclosure of child protective services information . . .
shall have immunity from any liability, civil or criminal, that might otherwise result by reason of
such actions.”
based upon Plaintiffs’ allegations of the relevant facts, the School District Defendants complied in
good faith with their statutory obligation when they made the hotline call to the Office of Children
and Family Services and are therefore immune from liability pursuant to Social Services Law §
419. Accordingly, the Court grants the School District Defendants’ Motion to dismiss Plaintiffs’
Amended Complaint to the extent Plaintiffs’ allegations are based on the hotline call to the Office

of Children and Family Services.
D. Plaintiffs’ Statutory Causes of Action
Plaintiffs allege two causes of action “based upon a theory of statutory liability against all
Defendants.” See Dkt. No. 14 at 12-16. Defendants argue that these statutory causes of action—
made up of dozens of state and federal statutes, with the sole exception of Plaintiffs’ claim pursuant
to 42 U.S.C. § 1983—fail to state a cognizable claim and should be dismissed with prejudice. Dkt.
No. 23-1 at 13; Dkt. No. 26-1 at 9.
Defendants first argue that Plaintiffs assert claims pursuant to statutes for which no private
right of action exists. Dkt. No. 23-1 at 14; Dkt. No. 26-1 at 9.15 Specifically, Plaintiffs cite several
federal16 and state17 criminal statutes. Dkt. No. 23-1 at 14. Courts in this district have recognized

15 In response, Plaintiffs concede that they “may have [made an error] in some penal law citing”
but assert that the “majority is correct.” Dkt. No. 35 at 5-6.
16 See 18 U.S.C. §§ 242 (deprivation of rights under color of law), 241 (conspiracy against rights),
245 (federally protected activities), 1918 (disloyalty and asserting the right to strike against the
Government), 244 (discrimination against person wearing uniform of armed forces), 1201
(kidnapping), 3283 (statute of limitations for offenses against children), 2340 (defining “torture”),
287 (false, fictitious or fraudulent claims to the military). Dkt. No 14 at ¶¶ 38, 40-41, 51, 57, 61,
63-65.
17 See New York Penal Law §§ 240.36 (loitering in the first degree), 240.50 (falsely reporting an
incident in the third degree), 135.60 (coercion in the third degree), 155.05 (larceny), 155.25 (petit
larceny), 210.45 (making a punishable false written statement), 210.35 (making an apparently
sworn false statement in the second degree), 120.15 (menacing in the third degree), 240.30
(aggravated harassment in the second degree), 130.52 (forcible touching), 175.35 (offering a false
“that there is no private right of action to enforce state or federal criminal statutes unless the statute
specifically authorizes it.” Ming v. Brouillete, No. 6:23-CV-0086 (MAD/ML), 2023 WL 5444485,
at *2 (N.D.N.Y. 2023); McFadden v. Ortiz, No. 5:12-CV-1244 (MAD/ATB), 2013 WL 1789593,
at *3 (N.D.N.Y. Apr. 26, 2013) (holding that “there is no private right of action to enforce either
state or federal criminal statutes”); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)

(noting that “in American jurisprudence at least, a private citizen lacks a judicially cognizable
interest in the prosecution or [non-prosecution] of another”). Additionally, Plaintiffs cite various
laws which do not provide for a private right of action.18 Accordingly, the Court dismisses
Plaintiffs’ claims pursuant to statutes for which no private right of action exists.
Defendants next argue that Plaintiffs assert claims pursuant to several statutes which do
not apply to the facts alleged in the Amended Complaint. Dkt. No. 23-1 at 16-17; Dkt. No. 26-1
at 9.19 The Court agrees that even when construing Plaintiffs’ Amended Complaint liberally, these

instrument for filing in the first degree), 200.00 (bribery in the third degree), 200.04 (bribery in
the first degree). Dkt. No. 14 at ¶¶ 28-36.
18 See 42 U.S.C. § 3631 (Dkt. No. 14 at ¶ 42); 42 U.S.C. § 14141 (id. at ¶ 43); 20 U.S.C. § 1232g
and corresponding federal regulations (id. at ¶ 65); Title 6 of the New York Social Services Law
§§ 411-428 (id. at ¶¶ 67-68).
19 Specifically, Plaintiffs’ Amended Complaint cites to the following statutes: 28 U.S.C. § 518
(governing conduct and argument by the United States Attorney General) (Dkt. No 14 at ¶ 37); 42
U.S.C. §§ 3603, 3604, 3617, 3631 (governing violations and penalties related to the Fair Housing
Act) (id. at ¶¶ 42 & 54); 28 U.S.C. §§ 351-364 (governing complaints against judges and judicial
discipline) (id. at ¶ 44); 5 U.S.C. § 7311 (governing public officials’ conduct regarding loyalty and
striking) (id. at ¶ 51); 15 U.S.C. § 1 (the Sherman Act governing antitrust actions) (id. at ¶ 56); 22
U.S.C. § 2755 (prohibiting discrimination with respect to “Foreign Relations and Intercourse”) (id.
at ¶ 58); 29 C.F.R. § 1605 (containing Equal Opportunity Employment Commission regulations)
(id.); 31 U.S.C. §§ 3729-3733 (the Federal False Claims Act) (id. at ¶¶ 59, 66); the Federal Torts
Claims Act (id. at ¶ 59); Violence Against Women Act, 55 Cal App.2d 322, 130 P.2d 131, 134,
Tex. Civ. App 143 S.W” (id. at ¶ 60); and New York Social Services Law §§ 400-410 (spanning
5 titles, including “powers and duties of public welfare officials,” “child welfare services,”
“preventive services for children and their families,” “child welfare services planning and
administration,” “services; pregnant adolescents” and “day care for certain children.”) (id. at ¶ 68).
Plaintiffs also cite “130 P.2d 131,134,” see Dkt. No. 14 at ¶ 60. This cite appears to be to a
statutes do not apply to the facts alleged. Accordingly, the Court dismisses any claims against
Defendants premised on these statutes. See, e.g., Garcia v. Paylock, No. 13-CV-2868 (KAM),
2014 WL 298593, at *7 (E.D.N.Y. Jan. 28, 2014) (dismissing plaintiff’s claim pursuant to 42
U.S.C. § 1985(2) because the claim was “wholly unrelated to the allegations in the complaint”);
Yusim v. Astoria Fed. Sav., No. 12-CV-1805 (SLT), 2012 WL 1417206, at *1 (E.D.N.Y. Apr. 24,

2012) (granting motion to dismiss a complaint when the “statutes to which [the] plaintiff cites [did]
not apply to the facts as alleged”).
Finally, Defendants argue that Plaintiffs assert claims which reference “misidentified or
nonexistent statutes.” Dkt. No. 23-1 at 17; Dkt. No. 26-1 at 8-9.20 The Court finds, even construing
these allegations liberally, the citations to “misidentified or nonexistent statutes” cannot form the
basis of valid claims against Defendants. Accordingly, the Court grants Defendants’ Motions to
dismiss these paragraphs.21
E. Plaintiffs’ 42 U.S.C. § 1983 Claims
Plaintiffs’ second cause of action alleges violations of 42 U.S.C. § 1983 (“Section 1983”)

pursuant to “[v]iolations” of the First, Fourth, Fifth, Ninth, Thirteenth and Fourteenth

California case People v. McIlvain, 55 Cal. App. 2d 322, 130 P.2d 131 (1942), interpreting
California penal law provisions related to rape.
20 Specifically, Plaintiffs cite to a group of inapplicable public laws including: “45 stat 54,” “80
stat 613,” “94 stat 1743,” “96 stat 32,” and “106 stat 4516” without clearly identifying which
statute they are referring to or how the statute is applicable to the allegations in the Amended
Complaint (Dkt. No 14 at ¶ 39); “rule 59” without specifying which rules are being referred to (id.
at ¶ 44); and Sections “100.1,” “100.2,” and “100.3” without identifying the law these sections can
be found under, or other information to determine the law these allegations refer to (id. at ¶¶ 45-
47).
21 The Court construes Plaintiffs’ citations to Article III, Section 2 of the United States
Constitution, see Dkt. No. 14 at ¶ 53, and citations to 28 U.S.C. §§ 1331 and 1332(a), see id. at ¶
55, as citing statutes for the purpose of jurisdiction and not as statutes under which Plaintiffs are
claiming a cause of action against Defendants.
Amendments to the United States Constitution. Dkt. No. 14 at ¶¶ 54, 69.
To state a claim under Section 1983, a plaintiff “must allege (1) that the defendants
deprived him of a right ‘secured by the Constitution or laws of the United States’; and (2) that they
did so ‘under color of state law.’” Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Defendants argue, inter

alia, that they are not liable pursuant to Section 1983 because Plaintiffs failed to identify any
official unlawful policy of Duanesburg or DSS which violated their constitutional rights. Dkt. No.
23-1 at 18; Dkt. No. 26-1 at 10.
A local government22 may not be held liable under Section 1983 for an “injury inflicted
solely by its employees or agents.” Monell v. New York City Dept. of Social Servs., 436 U.S. 658,
694 (1978); see also Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008) (“As
subsequently reaffirmed and explained by the Supreme Court, municipalities may only be held
liable when the municipality itself deprives an individual of a constitutional right.”). Instead,
“[p]laintiffs who seek to impose liability on local governments under [Section] 1983 must prove

that ‘action pursuant to official municipal policy’ caused their injury.” Connick v. Thompson, 563
U.S. 51, 60-61 (2011) (quoting Monell, 436 U.S. at 691). A school district’s liability under Monell
can be premised on any of the following three theories:
(1) that a district employee was acting pursuant to an expressly adopted official
policy; (2) that a district employee was acting pursuant to a longstanding practice
or custom; or (3) that a district employee was acting as a ‘final policymaker.’

J.L. v. E. Suffolk Boces, 113 F. Supp. 3d 634, 643 (E.D.N.Y. 2015) (quoting Hurdle v. Bd. of Educ.
of City of New York, 113 F. App’x 423, 424-25 (2d Cir. 2004)).

22 For Section 1983 purposes, school districts are considered to be local governments and are
subject to the same standards of liability. Frank v. Sachem Sch. Dist., 84 F. Supp. 3d 172, 193
(E.D.N.Y. 2015), aff’d, 633 F. App’x 14 (2d Cir. 2016).
Here, Plaintiffs’ Amended Complaint fails to identify any official policy, longstanding
practice or custom of the School District or DSS that caused a violation of their constitutional
rights. Accordingly, Plaintiffs have failed to allege a valid Section 1983 claim against Defendants.
See id. at 646 (dismissing plaintiff’s claim against a school district because the complaint failed
“to allege that the District had an official municipal policy that caused the [p]laintiffs’ alleged

constitutional injuries”); Yant v. New York City Police Dep’t, No. 85 CIV. 4512 (MGC), 1987 WL
16372, at *1 (S.D.N.Y. Aug. 26, 1987) (granting a motion to dismiss where plaintiff made “no
suggestion or possible inference of any kind of official policy, practice or custom on the part of
the Police Department”).23
Accordingly, Plaintiffs’ claim premised on 42 U.S.C. § 1983 is dismissed.24
F. Opportunity to Amend
Generally, a court should not dismiss claims contained in a complaint filed by a pro se
litigant without granting leave to amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice
so requires.”). An opportunity to amend is not required, however, where “the problem with [the
plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v.

23 Because the Court finds that Plaintiffs’ Amended Complaint fails to identify any official policy
or longstanding practice or custom that led to an alleged constitutional deprivation, the Court need
not address Defendants’ other arguments related to Plaintiffs’ failure to establish a conspiracy, a
violation of any constitutional right, or that individually named Defendants were personally
involved in an alleged deprivation of Plaintiffs’ constitutional rights. See Dkt. No. 23 at 17-18;
Dkt. No. 26-1 at 10-11.
24 Because the Court is dismissing Plaintiffs’ Amended Complaint in its entirety, the Court need
not address Defendants’ argument that Plaintiffs’ Amended Complaint fails to comply with Rule
8 of the Federal Rules or Civil Procedure, or Defendants’ argument regarding the availability of
punitive damages. See Dkt. No. 23-1 at 12-13, 18-19; Dkt. No. 26-1 at 9, 11.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to
support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here
it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993); accord Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997).
Here, in light of the factual and substantive deficiencies in Plaintiffs’ Amended Complaint
set forth above, the Court finds that any amendment would be futile. Accordingly, the Court grants
Defendants’ Motions to dismiss Plaintiffs’ Amended Complaint in its entirety with prejudice.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ Motions to dismiss, Dkt. Nos 23, 26, are GRANTED in their
entirety; and the Court further
ORDERS that the Amended Complaint, Dkt. No. 14, is DISMISSED with prejudice and
without leave to amend; and the Court further
ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the
Local Rules, and to close the case.
IT IS SO ORDERED.

Dated: November 29, 2023 Olumel . dare
Albany, New York Anne M. Nardacci
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10316218. Public record. Not legal advice.