DS v. Rochester City School District

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

D.S., an infant, by and through her parent

and natural guardian, C.S., and C.S.,

individually, on her own behalf, DECISION AND ORDER

Plaintiffs, 6:19-CV-6528 EAW

v.

ROCHESTER CITY SCHOOL DISTRICT,

et al.,

Defendants.

INTRODUCTION

Plaintiffs D.S. and C.S. (collectively “Plaintiffs”) bring this action against

defendants Rochester City School District (“RCSD”), the Board of Education of the

RCSD, Barbara Dean-Williams, Karl Kristoff, Fatimat Reid, Sheelarani Webster, Charles

Smith, Kim Garlock, Amy Martin, Nancy Resto, Shelly Boyd, Jessica Flanders, Elizabeth

Caveny, Nicole McCoy, Megan Carlett, Valerie Tarragrossa,1 Yolanda Wade, Idonia

Owens, Erica Deming, and two John Doe Defendants (collectively “Defendants”),

alleging violations of Title VI, Title IX, and 42 U.S.C. § 1983, First Amendment

1 In her Answer, Defendant Tarragrossa indicates that her last name is misspelled in

Plaintiffs’ complaint and is actually spelled Torregrossa. (Dkt. 13 at 1). For purposes of

this Decision, the Court will use the spelling indicated in the complaint, but if Plaintiffs

amend their complaint, they should correct this deficiency.

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retaliation, municipal liability for failure to train and supervise, negligent supervision,

and equal protection. (Dkt. 1).

Pending before the Court is a motion to dismiss Plaintiffs’ complaint filed by

Defendants RCSD, the Board of Education of the RCSD, Barbara Dean-Williams, Karl

Kristoff, Fatimat Reid, Sheelarani Webster, Charles Smith, Kim Garlock, Amy Martin,

Nancy Resto, Shelly Boyd, Jessica Flanders, Elizabeth Caveny, Nicole McCoy, Megan

Carlett, Yolanda Wade, Idonia Owens, and Erica Deming (collectively the “District

Defendants”), pursuant to Rules 12(b)(2)-(6), 12(e), and 10(a) of the Federal Rules of

Civil Procedure. (Dkt. 4). Also pending is a motion for judgment on the pleadings filed

by Defendant Valerie Tarragrossa pursuant to Rule 12(c) of the Federal Rules (Dkt. 26),

and Plaintiffs’ cross-motion to amend their complaint (Dkt. 29). For the reasons set forth

below, the District Defendants’ motion is granted in part and denied in part, Defendant

Valerie Tarragrossa’s motion is granted, and Plaintiffs’ cross-motion to amend is denied.

As detailed below, none of Plaintiffs’ claims plausibly allege a cause of action.

However, because “the usual practice is to grant leave to amend the complaint” when a

motion to dismiss is granted, Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990),

with respect to those claims that are dismissed without prejudice, Plaintiffs are granted

leave to file an amended complaint within 30 days of the date of and in accordance with

this Decision and Order, if they can do so consistent with their obligations under Federal

Rule of Civil Procedure 11.

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FACTUAL BACKGROUND

The following facts are taken from the complaint (Dkt. 1), which is the operative

pleading. As is required at this stage of the proceedings, the Court treats Plaintiffs’

allegations as true.

Plaintiff D.S. is a child residing in the City of Rochester, New York, with her

mother, Plaintiff C.S. (Id. at ¶ 4). Plaintiff D.S. and Plaintiff C.S. are white. (Id. at ¶ 4).

Plaintiff D.S. attended School No. 58, a public school in the RCSD known as World of

Inquiry, where the ratio of black and Hispanic children to white children is approximately

seven to one. (Id.at ¶¶ 4, 6). The allegations in the complaint arise from incidents

occurring at School No. 58.

Plaintiff D.S. began attending School No. 58 in the fall of 2016 for her third-grade

school year. (Id. at ¶ 34). Before the 2016 election, Plaintiff D.S.’s teacher, Defendant

Flanders, conducted a mock election and asked the children who they would vote for to

be President of the United States. (Id. at ¶ 38). Plaintiff D.S. stated that she would vote

for Donald Trump, whereas her other classmates supported Hillary Clinton’s candidacy.

(Id. at ¶ 39). As a result of Plaintiff D.S.’s mock vote, she was mistreated by her

classmates. (Id. at ¶ 40). In a morning circle designed to discuss the students’ feelings

about the elections, Plaintiff D.S.’s classmates called her a racist and said that Plaintiff

C.S. must be a racist too. (Id. at ¶ 42). Plaintiff D.S.’s mock vote for Donald Trump

made her unpopular and resulted in her being mistreated by her teacher and harassed and

bullied by certain black and Hispanic classmates. (Id. at ¶ 47). Defendant Flanders did

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not allow Plaintiff D.S. to participate in activities that other students engaged in and

unfairly punished Plaintiff D.S. (Id. at ¶¶ 48, 58, 60).

Following the mock presidential vote, Defendant Resto, the administrative

assistant to the principal, told Plaintiff C.S. that Plaintiff C.S. could no longer enter the

school through the back door, even though that door was routinely used by other parents

as an entrance. (Id. at ¶ 52). When Plaintiff C.S. raised the issue of Plaintiff D.S.’s

disparate treatment with Defendant Webster, the Principal of School No. 58, the only

option Plaintiffs were given as a remedy was to move Plaintiff D.S. to a different third

grade classroom, which they did. (Id. at ¶¶ 62, 66). But in the new third grade

classroom, Plaintiff D.S. was harassed, physically assaulted, and bullied by a male

Hispanic classmate on a regular basis. (Id. at ¶¶ 67, 68, 69).

In her fourth-grade year, Plaintiff D.S. continued to be harassed, physically

assaulted, and bullied by the same Hispanic classmate. (Id. at ¶¶ 76, 78, 79). The school

failed to address the harassment and bullying, despite Plaintiff D.S.’s complaints. For

example, when Plaintiff D.S. reported an incident to a physical education teacher,

Plaintiff D.S. was punished for the report and the classmate was not. (Id. at ¶ 80, 81).

The classmate stomped on Plaintiff D.S.’s foot so hard that Plaintiff D.S. required a

doctor to remove part of her toenail. (Id. at ¶ 97). Plaintiff D.S. asked several adults,

including Defendants Caveny and McCoy, teachers at School No. 58; Defendant Resto,

administrative assistant to Defendant Webster; and the school nurse to call Plaintiff C.S.,

but was not permitted to do so. (Id. at ¶ 93). The school staff failed to supervise the

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classmate and Plaintiff D.S., which allowed him to continue to make physical contact

with her. (Id. at ¶ 113). When that classmate’s father was informed that Plaintiff C.S.

had complained about his son to the school and had a Facebook page to communicate

about what was happening at the school, the classmate’s father threatened Plaintiff D.S.

with physical harm in the school building, yet no one from the school contacted the

police about the incident. (Id. at ¶¶ 120, 121).

In April of her fourth-grade school year, Plaintiff D.S. was removed from class by

the school psychologist, Defendant Deming, without parental knowledge, who engaged

in a fishing expedition about Plaintiff D.S.’s home life. (Id. at ¶ 85). Plaintiff D.S.

mentioned that her brother had a BB gun and a referral was made to Monroe County

Child Protective Services. (Id. at ¶ 87). This referral resulted in a visit to their home,

which was determined to be unfounded. (Id. at ¶¶ 85-88). The unfounded referral by

RCSD was intended to serve as retaliation against Plaintiff C.S. for her complaints

regarding discrimination against Plaintiff D.S. at the school and the school’s failure to

keep Plaintiff D.S. safe from bullying and harassment. (Id. at ¶ 89).

In April of 2018, Plaintiff C.S. informed Defendant Owens, the Chief of School

Equity, and School No. 58 staff that Plaintiff D.S. was being taken to a doctor to assess

the physical and psychological effects from her experience in school. (Id. at ¶¶ 28, 99).

On June 19, 2018, Plaintiff C.S. paid an independent education specialist to conduct an

assessment of Plaintiff D.S. and the specialist determined that Plaintiff D.S. met the

criteria for Other Health Impairment, Learning Disability, and Emotional Disturbance,

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resulting from the bullying, harassment, and abuse she experienced in school. (Id. at

¶¶ 154, 156. 157). RCSD disagreed with the educational assessment and refused to

provide special education services for Plaintiff D.S. (Id. at ¶¶ 159, 160). Plaintiff C.S.

was forced to hire an attorney and file for mediation, which ultimately resulted in the

imposition of a proposed Section 504 plan for Plaintiff D.S. (Id. at ¶ 161).

In fifth grade, Plaintiff D.S. continued to experience harassment and bullying by

her classmates. (Id. at ¶¶ 162, 163). An African-American female classmate pulled

Plaintiff D.S.’s hair and then falsely reported that D.S. had used the “n” word. (Id. at

¶¶ 163, 167). The school credited the classmate’s fabrication and Plaintiff D.S. was

forced to endure a “Peace Circle” to discuss her use of that word. (Id. at ¶ 169). In the

Peace Circle, Defendant Tarragrossa, an employee of the Center for Youth on contract to

the RCSD, and Defendants Martin and Carlett, teachers at School No. 58, accused

Plaintiff D.S. of being racist based on her alleged use of the “n” word. (Id. at ¶ 171). In

the Peace Circle, Defendant Tarragrossa stated, “someone here has been racist, and we

want to talk about that” which reinforced that Plaintiff D.S. was a racist and was a form

of harassment. (Id. at ¶ 173).

On September 24, 2018, a meeting was held about the hair pulling incident at

which Plaintiff C.S. learned that parents of Plaintiff D.S.’s classmates were informed that

Plaintiff D.S. had made a racially charged statement. (Id. at ¶¶ 174, 176). This further

increased the perception that Plaintiffs were racists. (Id. at ¶ 177). At a meeting the

following day with Defendant Smith, the Assistant Principal at School No. 58; Defendant

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Webster; Defendant Boyd, the Parent Liaison at the school; parents of five classmates,

and two parent engagement representatives, Plaintiff C.S. was again accused of being

racist and raising racist children. (Id. at ¶ 182). Each of the parents at the meeting said

that they wanted Plaintiff D.S. removed from school. (Id. at ¶ 185).

Incidents of harassment and bullying continued in September and October of that

school year. (Id. at ¶¶ 187-196). Plaintiff C.S. met with Defendant Smith and requested

him to fill out a report pursuant to New York’s Dignity for All Students Act (“DASA”)

on those incidents but Plaintiff C.S. was told to file the report herself. (Id. at ¶¶ 197,

198). The harassment and assaults against Plaintiff D.S. continued in November,

December, and January. (Id. at ¶¶ 203-09). Following several requests by Plaintiff C.S.

that steps be taken by the school to protect Plaintiff D.S., in January of 2019, Plaintiff

C.S. was promised that one additional adult would be placed in D.S.’s classroom, but it

did not happen immediately and when it did, it was not adequate. (Id. at ¶¶ 210, 211,

214).

In February 2019, Defendant Martin (a teacher) accused Plaintiff D.S. of coloring

a picture for Black Lives Matter week in “blackface.” (Id. at ¶ 220). Defendant Martin

then loudly stated that Plaintiff D.S. was being racist in front of her classmates. (Id. at

¶ 221). The statement by Defendant Martin was part of a pattern of racial discrimination

suffered by Plaintiff D.S. as a result of her being a minority student. (Id. at ¶ 224). At

the end of that school year, a one-on-one aide was provided for Plaintiff D.S.’s safety,

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which made her stand out from the other children but was necessary for her safety. (Id. at

¶ 241).

As a result of Plaintiff C.S.’s advocacy for her child, she was blocked from using

the school Facebook page, which is the primary method for parents to be informed of

school events and activities. (Id. at ¶¶ 244, 245, 246). Defendants also retaliated against

Plaintiff C.S.’s older son as a result of Plaintiff C.S.’s complaints about the bullying and

harassment she and Plaintiff D.S. have received. (Id. at ¶ 251, 255).

PROCEDURAL BACKGROUND

Plaintiffs filed their complaint on July 16, 2019. (Dkt. 1). The District

Defendants filed a motion to dismiss the complaint on September 9, 2019. (Dkt. 4).

Plaintiffs filed their response on September 24, 2019 (Dkt. 5, 6), and the District

Defendants replied on October 1, 2019 (Dkt. 8). Defendant Tarragrossa filed an answer

to the complaint on December 5, 2019. (Dkt. 13).

On August 10, 2020, Defendant Tarragrossa filed a motion for judgment on the

pleadings. (Dkt. 26). In response, Plaintiffs filed a cross-motion to amend the complaint

(Dkt. 29), which is opposed by Defendant Tarragrossa (Dkt. 31) and the District

Defendants (Dkt. 32). Plaintiffs filed a reply in support of their motion to amend (Dkt.

37).

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DISCUSSION

I. Legal Standard on Motions to Dismiss2

A. Federal Rules of Civil Procedure 12(b)(2), 12(b)(4) and 12(b)(5)—Lack

of Personal Jurisdiction, Insufficient Process, and Insufficient Service

of Process

Under Federal Rule of Civil Procedure 12(b), a defendant may assert the following

defenses, among others, by motion: lack of personal jurisdiction; insufficient process; and

insufficient service of process. Fed. R. Civ. P. 12(b)(2), (4), (5). “[A] Rule 12(b)(4)

motion is a challenge to the form of the process rather than the manner or method of its

service, whereas a Rule 12(b)(5) motion challenges the mode of delivery or the lack of

delivery of the summons and complaint.” Coon v. Shea, No. 2:14-CV-85, 2014 WL

5847720, at *4 (D. Vt. Sept. 5, 2014) (quotation omitted), report and recommendation

adopted in relevant part, No. 2:14-CV-85, 2014 WL 5849053 (D. Vt. Nov. 12, 2014).

“Objections pursuant to Rule 12(b)(2) concern lack of personal jurisdiction, which results

when a summons and complaint have not been served on the defendant pursuant to Rule

12(b)(5).” Jackson v. City of N.Y., No. 14-CV-5755 GBD KNF, 2015 WL 4470004, at

*4 (S.D.N.Y. June 26, 2015) (quotation omitted); Marquez v. Starrett City Assoc., 406 F.

Supp. 3d 197, 203 (E.D.N.Y 2017) (“Because failure to comply with the requirements of

Rule 4 goes to whether the Court has personal jurisdiction over Defendant, the Court

2 The District Defendants’ notice of motion indicates that they are moving to

dismiss the complaint for improper venue pursuant to Rule 12(b)(3). This ground is not

discussed in the District Defendants’ submissions and the Court presumes the District

Defendants have abandoned this argument as a basis for their motion and will not address

it herein.

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construes this challenge as a motion pursuant to Rules 12(b)(2) and 12(b)(4).”); see also

C. Wright, A. Miller, & M. Kane, 5B Fed. Prac. & Proc. Civ. § 1353 (3d ed.) (“Although

the questions of personal jurisdiction and service of process are closely interrelated,

service of process is merely the means by which a federal court gives notice to the

defendant and asserts jurisdiction over him.”).

“Objections to sufficiency of process under Fed. R. Civ. P. 12(b)(4) must identify

substantive deficiencies in the summons, complaint or accompanying documentation.”

DiFillippo v. Special Metals Corp., 299 F.R.D. 348, 352-53 (N.D.N.Y. 2014) (citation

omitted). “[A] Rule 12(b)(4) motion is proper only to challenge noncompliance with the

provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals

specifically with the content of the summons.” Jackson 2015 WL 4470004, at *4

(quoting Charles Alan Wright & Arthur R. Miller, 5B Fed. Prac. & Proc. § 1353 (3d ed.

2004)).

By contrast, “[a] Rule 12(b)(5) motion is the proper vehicle for challenging the

mode of delivery or lack of delivery of the summons and complaint.” Id. (quoting 5B

Wright & Miller, Fed. Prac. & Proc. § 1353 (3d ed. 2004)); DeLuca v. AccessIT Grp.,

Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010) (“A defendant may move to dismiss under

Rule 12(b)(5) for insufficient service of process. In deciding a Rule 12(b)(5) motion, a

Court must look to Rule 4, which governs the content, issuance, and service of a

summons.”) (citation omitted)). “On a Rule 12(b)(5) motion to dismiss, the plaintiff

bears the burden of establishing that service was sufficient.” Ahluwalia v. St. George’s

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Univ., LLC, 63 F. Supp. 3d 251, 260 (E.D.N.Y. 2014) (quotation omitted), aff’d sub nom.

Ahluwalia v. St. George’s Univ., 626 F. App’x 297 (2d Cir. 2015); Khan v. Khan, 360 F.

App’x 202, 203 (2d Cir. 2010) (burden is on plaintiff to establish that service was

sufficient); Sunset Homeowners Ass’n, Inc. v. DiFrancesco, No. 1:19-CV-00016 EAW,

2019 WL 1597497, at *6 (W.D.N.Y. Apr. 15, 2019) (“When a defendant raises a Rule

12(b)(5) challenge to the sufficiency of service of process, the plaintiff bears the burden

of proving its adequacy.” (internal quotations and citations omitted)).

B. Federal Rule of Civil Procedure 12(b)(6) and 12(c)—Failure to State a

Claim and Judgment on the Pleadings

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate New York. Eng’rs

Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016), cert. denied, 137 S.

Ct. 2279 (2017). To withstand dismissal, a claimant must set forth “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(internal quotations and citations omitted). “To state a plausible claim, the complaint’s

‘[f]actual allegations must be enough to raise a right to relief above the speculative

level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting

Twombly, 550 U.S. at 555).

“Judgment on the pleadings may be granted under Rule 12(c) where the material

facts are undisputed and where judgment on the merits is possible merely by considering

the contents of the pleadings.” McAuliffe v. Barnhart, 571 F. Supp. 2d 400, 402

(W.D.N.Y. 2008). “In deciding a Rule 12(c) motion for judgment on the pleadings, the

court should ‘apply the same standard as that applicable to a motion under Rule 12(b)(6),

accepting the allegations contained in the complaint as true and drawing all reasonable

inferences in favor of the nonmoving party.’” Aboushama v. EMF Corp., 214 F. Supp.

3d 202, 205 (W.D.N.Y. 2016) (quoting Mantena v. Johnson, 809 F.3d 721, 727-28 (2d

Cir. 2015)).

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II. District Defendants’ Motion to Dismiss

The District Defendants challenge both the sufficiency of the summonses and the

manner in which they were served upon the individual defendants. They also contend

that Plaintiffs’ complaint fails to state a claim upon which relief may be granted.

A. Sufficiency of Process on the Individual Defendants

The District Defendants contend that all claims against the individual defendants

must be dismissed pursuant to Rule 12(b)(4) because the summonses for the individual

defendants were defective. (Dkt. 4-4 at 3, Dkt. 8 at 2). Specifically, the District

Defendants contend that the summonses state, “C/O the Rochester City School District,”

and do not include addresses for each individual defendant. (Dkt. 4-4 at 2-3).

Rule 4 requires that a summons “be directed to the defendant.” Fed. R. Civ. P.

4(a)(1)(B). “While Rule 4(a) requires that a summons be directed to defendant, it sets

forth no requirement regarding defendant’s address.” Spiess v. Meyers, 483 F. Supp. 2d

1082, 1093 (D. Kan. 2007) (“Here, the original summonses name Meyers and Foreman

as defendants, which is sufficient under Rule 4(a) despite the fact that the summonses list

incorrect addresses.”); Marquez, 406 F. Supp. 3d at 203 (“Put simply, to be compliant

with Rule 4, the correct name of the defendant must appear on the summons.”).

In addition, even were Plaintiffs required to list personal addresses for each

defendant on the summonses, “where the identified defects in a summons are merely

technical, ‘the appropriate remedy . . . [is] not to dismiss the claims but to serve an

amended summons[.]’” Oliver v. N.Y. State Police, No. 1:17-CV-01157 EAW, 2019 WL

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453363, at *5 (W.D.N.Y. Feb. 5, 2019) (quoting Precision Assocs., Inc. v. Panalpina

World Transp. (Holding) Ltd., No. 08-CV-42 JG VVP, 2011 WL 7053807, at *45

(E.D.N.Y. Jan. 4, 2011)); see also Ray v. Ray, No. 18 CIV. 7035 (GBD), 2019 WL

1649981, at *3 n.6 (S.D.N.Y. Mar. 28, 2019) (“However, any defective service could be

cured.” (quoting Jean-Laurent v. Cornelius, No. 15 Civ. 2217 (JGK), 2017 WL 933100,

at *1 (S.D.N.Y. Mar. 8, 2017))), aff’d, 799 F. App’x 29 (2d Cir. 2020); Marquez, 406 F.

Supp. 3d at 204 (“A failure to properly name the defendant need not be fatal. Of course,

every effort should be made to comply with the form of summons requirements stated in

Rule 4(a). However, technical errors that are neither misleading nor prejudicial can be

cured through an amendment, the right to which should be liberally granted.”).

Here, the summonses were directed to each individual defendant, as required by

Rule 4. To the extent that a failure to put a home address was error, it was neither

misleading nor prejudicial and does not warrant dismissal. On this basis, the District

Defendants’ motion to dismiss the claims against the individual defendants pursuant to

Fed. R. Civ. P. 12(b)(4) is denied.

B. Sufficiency of Service on the Individual Defendants

In addition to challenging the sufficiency of the process, the District Defendants

challenge the method of service by Plaintiffs on the individual District Defendants and

move to dismiss the complaint pursuant to Rules 12(b)(2) and (b)(5). Specifically, they

contend Plaintiffs could not effectuate service by leaving the papers with individuals who

did not have authority to accept them and by leaving them in locations where the

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individual defendants could not properly be considered to be employed. (Dkt. 4-4 at 3).

In response, Plaintiffs argue that “the defendants misrepresented the law and made

service of the summons and complaint more difficult than it had to be.” (Dkt. 5-3 at 5).

Pursuant to Fed. R. Civ. P. 4(e), Plaintiffs could effectuate service by any of the

following means:

(1) following state law for serving a summons in an action brought in

courts of general jurisdiction in the state where the district court is located

or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the

individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of

abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by

law to receive service of process.

Fed. R. Civ. P. 4(e).

Service of process in New York is governed by section 308 of the Civil Practice

Law and Rules (“CPLR”). According to CPLR 308(2), service can be made “by

delivering the summons within the state to a person of suitable age and discretion at the

actual place of business, dwelling place or usual place of abode of the person to be served

and by either mailing the summons to the person to be served at his or her last known

residence or by mailing the summons by first class mail to the person to be served at his

or her actual place of business[.]” CPLR 308(2). The statute defines “actual place of

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business” as including “any location that the defendant, through regular solicitation or

advertisement, has held out as its place of business.” CPLR 308(6).

“New York courts have construed ‘actual place of business’ to include (1) a place

where the defendant regularly transacts business, or (2) an establishment that the

defendant owns or operates, where there is a clear identification of the work performed

by her within that place of business.” Maldonado v. Arcadia Bus. Corp., No.

14CV4129DLIRML, 2015 WL 12791329, at *2 (E.D.N.Y. Aug. 27, 2015) (quoting

Warshun v. New York Cmty. Bancorp., Inc., 957 F. Supp. 2d 259, 266 (E.D.N.Y. 2013));

Leung v. New York Univ., No. 08-CV-05150 (GBD), 2016 WL 1084141, at *6 (S.D.N.Y.

Mar. 17, 2016) (noting that “the phrase ‘actual place of business’ is not necessarily

synonymous with being ‘physically present with regularity.’ Indeed, ‘[n]o definitive test

has emerged as to the meaning of actual place of business.’” (quoting Ascencio-Sutphen

v. McDonald’s Corp., 16 Misc. 3d 184, 187 (Sup. Ct. Bronx Cnty. 2007))). “The key

requirement is a reasonable reliance on prompt redelivery of the summons to the

defendant.” Maldonado, 2015 WL 12791329, at *2 (citing Ascencio-Sutphen, 16 Misc.

3d at 188); Leung, 2016 WL 1084141, at *5 (“Personal service by way of delivery to a

suitable person at a defendant’s actual place of business is allowed because it is presumed

that the business relationship between the deliveree and the defendant will induce the

prompt redelivery of the summons to the defendant.” (quoting Glasser v. Keller, 149

Misc. 2d 875, 878-79 (Sup. Ct. Queens Cnty. 1991))).

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The New York statute also directs that the summons be left with an individual of

“suitable age and discretion.” CPLR 308(2). To be of suitable age and discretion, the

“person ‘must objectively be of sufficient maturity, understanding and responsibility

under the circumstances so as to be reasonably likely to convey the summons to the

defendant.’” Maldonado, 2015 WL 12791329, at *2 (quoting Entm’t by J&J, Inc. v. Las

Hermanas Rest., Inc., No. 02 CV 1119, 2006 WL 3711565, at *2 (S.D.N.Y. Dec. 14,

2006)). “An adult co-worker can satisfy these requirements; it makes no difference if the

individual refuses to give his name or gives a false one.” Id.; Leung 2016 WL 1084141,

at *8 (rejecting argument that service was invalid because recipient was not authorized to

accept service on defendant’s behalf because “[a]uthorization, however, is not required.

All that is required is that the person to whom service is made be of ‘suitable age and

discretion.’” (quoting City of New York v. VJHC Dev. Corp., 125 A.D.3d 425, 425 (1st

Dep’t 2015))).

As an initial matter, while the District Defendants’ motion argues that dismissal of

Plaintiffs’ complaint is warranted as against all of the individual defendants pursuant to

Fed. R. Civ. P. 12(b)(5) (see Dkt. 4-4 at 3; Dkt 4-1 at ¶ 19), certain individual defendants

were personally served (Defendants Flanders, Smith, Deming, and Kristoff) and

dismissal against these defendants on this basis would be unwarranted. (Dkt. 6 at ¶¶ 3, 4,

7). As to those defendants, the motion to dismiss is denied.

As to the other individual District Defendants for whom Plaintiffs served by

leaving the summons and complaint with an employee at School 58 (Dkt. 6 at ¶ 13)

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(Defendants Garlock, Martin, Resto, Boyd, Caveny, McCoy, and Carlett), at the RCSD

Law Department (Defendants Webster, Wade, and Owens), and the Hall of Justice

(Defendant Reid), the Court rejects the District Defendants’ first contention that the

service was invalid because the individuals receiving the papers were not expressly

authorized to accept service. As noted, this is not required by CPLR 308(2).

A closer question is presented by whether or not these locations could be

considered an “actual place of business” for these defendants at the time they were

served. Defendants argue that they cannot be so considered during the summer months

when school is not in session. Similar concerns exist for the three District Defendants for

whom a summons and complaint were left at the RCSD Law Department (Defendants

Webster, Wade, and Owens) (Dtk. 6 at ¶ 18), and for Defendant Reid, whose summons

and complaint were left at the Hall of Justice, where District Defendants contend she was

on a leave of absence from her position as a family court judge (Dkt. 6 at ¶¶ 21-27; Dkt.

4-1 at ¶ 7). Taking all of the circumstances into consideration and in light of the fact that

school was due to resume shortly after the papers were served and it can fairly be

presumed that the business relationship between a school and its employees will induce

the prompt redelivery of the summons to the defendants, the Court finds service on

Defendants Garlock, Martin, Resto, Boyd, Caveny, McCoy, Carlett, Webster, Wade, and

Owens sufficient. Similarly, there being no information about the nature of the leave of

absence for Defendant Reid, the same presumption would fairly apply that any papers

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would be promptly delivered to her. Accordingly, as to these defendants, the motion to

dismiss is denied.

As to Defendant Deane-Williams, Plaintiffs contend upon their learning that she

was no longer employed with RCSD, she was properly served pursuant to CPLR 308(4),

which permits nail and mail service. This subsection provides,

where service under paragraphs one and two cannot be made with due

diligence, by affixing the summons to the door of either the actual place of

business, dwelling place or usual place of abode within the state of the

person to be served and by either mailing the summons to such person at

his or her last known residence or by mailing the summons by first class

mail to the person to be served at his or her actual place of business in an

envelope bearing the legend “personal and confidential” and not indicating

on the outside thereof, by return address or otherwise, that the

communication is from an attorney or concerns an action against the person

to be served, such affixing and mailing to be effected within twenty days of

each other; proof of such service shall be filed with the clerk of the court

designated in the summons within twenty days of either such affixing or

mailing, whichever is effected later; service shall be complete ten days after

such filing, except in matrimonial actions where service hereunder may be

made pursuant to an order made in accordance with the provisions of

subdivision a of section two hundred thirty-two of the domestic relations

law.

CPLR 308(4).

The affidavit of Plaintiffs’ process server (Dkt. 6) indicates that he attempted

personal service upon Defendant Deane-Williams on four separate occasions at one

address and five attempts at another address. (Id. at ¶¶ 28, 29). After the fifth attempt, he

attached the papers near the foyer directory of her building in an envelope addressed to

her and was told by a leasing manager that they would be given to her (id. at ¶ 29f), and

then mailed it to both addresses (id. at ¶ 30). The Court finds this service compliant with

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the requirements of the CPLR and District Defendants have not identified any reasons

why it would not be.

For the foregoing reasons, the Court finds that Plaintiffs sufficiently effectuated

service of process on the District Defendants. The District Defendants’ motion to dismiss

on this basis is accordingly denied.

C. Plaintiffs’ Title VI (Count One) and Title IX (Count Two) Claims

Counts One and Two of Plaintiffs’ complaint allege violations of Title VI and IX.

Title VI provides that “[n]o person in the United States shall, on the ground of race,

color, or national origin, be excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity receiving Federal financial

assistance.” 42 U.S.C. § 2000d. In addition to a prohibition of intentional discrimination

on the basis of race, color, or national origin, see Tolbert v. Queens Coll., 242 F.3d 58, 69

(2d Cir. 2001), Title VI also prohibits, in certain circumstances, “the deliberate

indifference of third parties to discrimination.” T.E. v. Pine Bush Cent. Sch. Dist., 58 F.

Supp. 3d 332, 355 (S.D.N.Y. 2014).

Title IX provides that “[n]o person shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). Similar to Title VI, a school district may be held liable for gender

discrimination under Title IX if it was deliberately indifferent to the sexual harassment

occurring. Nungesser v. Columbia Univ., 244 F. Supp. 3d 345, 362 (S.D.N.Y. 2017).

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“Title VI and Title IX operate in the same manner, except that Title VI prohibits

race discrimination in all programs receiving federal funds, whereas Title IX prohibits

sex discrimination in education programs.” Manalov v. Borough of Manhattan Comm.

Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013). Generally, “[a] plaintiff alleging racial

or gender discrimination by a [school] must do more than recite conclusory assertions,”

and must “specifically allege the events claimed to constitute intentional discrimination,”

including the factual circumstances supporting a plausible inference of discrimination.

Id. (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 712-14 (2d Cir. 1994)).

1. Title VI and Title IX Claims Against the Individual Defendants

Plaintiffs’ complaint does not specify against whom these causes of action are

pled; however, to the extent Plaintiffs allege violations of Titles VI and IX against the

individual defendants, any such claims are dismissed, as these statutes do not provide for

individual liability. See Sutton v. Stony Brook Univ., No. 18-CV-7434(JS)(ARL), 2020

WL 6532937, at *6 (E.D.N.Y. Nov. 5, 2020) (“The Supreme Court has held that while

Title IX creates liability for institutions and programs that receive federal funds, it does

not ‘authoriz[e] suit[s] against school officials, teachers, and other individuals.’” (quoting

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009))); Ikedilo v. Statter, No.

19-CV-9967 (RA), 2020 WL 5849049, at *8 (S.D.N.Y. Sept. 30, 2020) (“Defendants

next argue that Plaintiff’s Title VI, Title IX, and Section 504 claims against Defendants

Statter, Kaban, and Melvin must be dismissed, as individual defendants cannot be held

liable under those statutes. The Court agrees, and thus dismisses those claims.”); Eldars

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v. State Univ. of New York at Albany, No. 1:19-CV-0801-GTS-DJS, 2020 WL 2542957,

at *8 (N.D.N.Y. May 19, 2020) (“However, ‘Title VI claims cannot be asserted against

an individual defendant because the individual is not the recipient of federal funding.’”

(quoting Goonewardena v. New York, 475 F. Supp. 2d 310, 328 (S.D.N.Y. 2007)));

Russell v. Cnty. of Nassau, 696 F. Supp. 2d 213, 238 (E.D.N.Y. 2010) (“Title VI claims

cannot be asserted against an individual defendant because the individual is not the

recipient of federal funds.”); Wood v. Pittsford Cent. Sch. Dist., No. 03-CV-6541T, 2005

WL 43773, at *7 (W.D.N.Y. Jan. 10, 2005) (“Plaintiff . . . may not proceed with her Title

IX claims against the individual defendants, as Title IX does not provide for a remedy

against individuals.”).

Accordingly, Plaintiffs’ claims for violation of Titles VI and IX are dismissed with

prejudice as against the individual defendants.

2. Title VI and Title IX Claims Against RCSD and Board of

Education

The District Defendants also move to dismiss Plaintiffs’ Title VI and IX claims

against RCSD and the Board of Education of the RCSD, arguing that Plaintiffs have not

made a prima facie showing of a violation of either statute or plausibly pled a showing of

discrimination on the basis of Plaintiff D.S.’s race or gender in violation of Title VI and

Title IX, respectively. The Court agrees.

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a. Title VI Against RCSD and Board of Education

Liability for deliberate indifference to race-based student-on-student harassment

may arise where “a plaintiff establishes: (1) substantial control, (2) severe and

discriminatory harassment, (3) actual knowledge, and (4) deliberate indifference.” T.E.,

58 F. Supp. 3d at 355 (quoting Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 665

(2d Cir. 2012)); D.W.M. by Moore v. St. Mary Sch., No. 2:18-CV-3099DRHGRB, 2019

WL 4038410, at *14 (E.D.N.Y. Aug. 27, 2019) (“To plead a deliberate indifference claim

under Title VI, the plaintiff must allege facts demonstrating that the school (1) had actual

knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe,

pervasive and objectively offensive that it (4) deprived the victim of access to the

educational benefits or opportunities provided by the school.” (citations omitted)). In

order to qualify as deliberate indifference, the conduct “must, at a minimum, cause [the

student] to undergo harassment or make [the student] liable or vulnerable to it.” H.B. and

S.B. v. Monroe Woodbury Central Sch. Dist., No. 11-CV-5881(CS), 2012 WL 4477552,

at *14 (S.D.N.Y. Sept. 27, 2012) (quoting TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d

577, 596 (S.D.N.Y.2011)). A school district will only be found deliberately indifferent if

its actions were clearly unreasonable under the circumstances, but “when weighing the

adequacy of a response, a court must accord sufficient deference to the decisions of

school disciplinarians.” Zeno, 702 F.3d at 666.

Plaintiffs have adequately alleged that the RCSD exercised adequate control over

the circumstances giving rise to Plaintiffs’ allegations, possessed the authority to address

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the allegations, and had actual notice of the alleged harassment. See id. at 665. “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.’” Id. at 665 (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629, 646 (1999)). Here, the allegations of harassment contained in Plaintiffs’

complaint occurred on school grounds and Plaintiffs have sufficiently alleged that the

school had control over and was aware of the alleged harassment against Plaintiff D.S.

and these requirements are accordingly satisfied.

But control is not the end of the inquiry. Rather, harassment is actionable only

where it is severe, pervasive, offensive, and impermissibly discriminatory in nature.

Here, taking the allegations in Plaintiffs’ complaint as true, as a threshold matter,

Plaintiffs have not adequately pled that the alleged harassment faced by Plaintiff D.S.

was discriminatorily race-based and driven by the fact that she is white. Instead,

Plaintiffs repeatedly contend throughout their complaint that the bullying and harassment

suffered by Plaintiff D.S. was in response to and driven by Plaintiffs’ perceived beliefs

about race and their preferred presidential candidate. None of the allegations in the

complaint allege that Plaintiff D.S. was called names or assaulted with any reference to

her race. Being treated differently as a result of one’s political beliefs is not the

equivalent of discrimination that arises from an individual’s particular race, as is required

to establish a violation of Title VI.

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Further, even if certain instances of the harassment Plaintiff D.S. faced could be

considered to be related to her race, she has not alleged that the harassment was so

severe, pervasive, and objectively offensive that it deprived her of access to the

educational benefits or opportunities provided by the school. Aside from conclusory

allegations, the majority of the allegations of harassment in the complaint are not linked

to her purported racism at all, and notwithstanding the alleged harassment, Plaintiff D.S.

remained at School No. 58. See Manalov 952 F. Supp. 2d at 532 (dismissing Title VI

claim where conclusory statements in complaint that professors “blatantly discriminated

against all white males” and “created an adverse education environment” amounted to

threadbare recitals and “[N]owhere in either the Complaint or his opposition papers does

[plaintiff] allege that any defendant referred to his race or gender, nor does he recite any

other fact from which race- or gender-based discriminatory intent reasonably could be

inferred.”); D.C. v. Copiague Union Free Sch. Dist., No. 16-cv-4546(SJF)(AYS), 2017

WL 3017189, at *9-10 (E.D.N.Y. Jul. 11, 2017) (granting motion to dismiss Title VI

claim where allegations that plaintiff was referred to in a racially derogatory manner on

two occasions one year apart was not sufficiently severe or pervasive to sustain a Title VI

claim); H.B. and S.B., 2012 WL 4477552, at *15, 17 (granting motion to dismiss where

the complaint alleged only one reference to race-related name-calling, holding that one

instance of a student using racial slurs could not be considered to be so severe, pervasive

and objectively offensive, as required and although plaintiff’s grades and performance on

soccer team declined, insufficient to show deprivation of educational opportunities).

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Because the allegations in Plaintiffs’ complaint currently fail to plausibly allege

actionable harassment on the basis of race, Plaintiffs’ claim for violation of Title VI is

dismissed without prejudice as against RCSD and the Board of Education. As explained

further below, Plaintiffs will be permitted leave to amend their complaint to attempt to

remedy the deficiency.

b. Title IX Against RCSD and Board of Education

Similar to Title VI, “[a] school may be held liable under [Title IX] if it was

‘deliberately indifferent to sexual harassment, of which [it] ha[d] actual knowledge, that

is so severe, pervasive, and objectively offensive that it can be said to deprive the victims

of access to the educational opportunities or benefits provided by the school.’”

Nungesser, 244 F. Supp. 3d at 362 (quoting Davis, 526 U.S. at 650). “The student-on-

student or teacher-on-student harassment forming the basis for a Title IX claim must also,

of course, be ‘gender-oriented.’” Id. (quoting Davis, 526 U.S. at 651).

Much like Plaintiffs’ Title VI claim, the Court concludes that Plaintiffs have not

sufficiently pled a claim for deliberate indifference to gender-based harassment in

violation of Title IX. As noted, in order to state such a claim, “the harassment must be

‘because of gender,’ not simply involve gender-based terms.” H.B. and S.B., 2012 WL

4477552, at *16 (quoting Patenaude v. Salmon River Cent. Sch. Dist., No. 03-CV-1016,

2005 WL 6152380, at *5 (N.D.N.Y. Feb. 16, 2005)); see also Nungesser, 244 F. Supp. 3d

at 362–63 (“Harassment, ‘even harassment between men and women’ is not

automatically considered to be gender-based discrimination ‘merely because the words

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used have sexual content or connotations.’” (quoting Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 80 (1998))); Doe v. Torrington Bd. of Educ., 179 F. Supp. 3d

179, 197 (D. Conn. 2016) (“Doe does not sufficiently allege that he was bullied,

harassed, and assaulted because of his gender. . . . The terms ‘fat ass’ and ‘baby,’ are not

associated with gender, and other courts in this Circuit have found that the terms ‘pussy,’

‘faggot,’ and ‘bitch’ are also insufficient to suggest that a student was harassed on the

basis of gender.”).

Here, Plaintiffs have not identified any harassment that arose because of Plaintiff

D.S.’s gender. Two of the principal antagonists responsible for her harassment were

male, but another was a female classmate. None of the allegations in the complaint

identify Plaintiff D.S.’s gender as being the motivation for the harassment against her.

While some of the name calling had gender-related connotations, the use of those terms

as alleged does not plausibly allege gender-based animus necessary to support a Title IX

claim. Doe v. Patrick, 437 F. Supp. 3d 160, 181 (N.D.N.Y. 2020) (granting summary

judgment on Title IX claim where plaintiff presented no evidence that harassment was

gender-based); H.B. and S.B., 2012 WL 4477552, at *17 (dismissing Title IX claim

notwithstanding that plaintiff was called insults with gender connotations (e.g., “whore”

and “bitch”) where she was also called names not associated with gender, suggesting she

was being picked on for other reasons). This is particularly the case here where the

name-calling with the gender-based connotations was apparently generated by one

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particular individual (see Dkt. 1 at ¶ 69), who Plaintiffs allege also demonstrated loud and

disruptive behavior toward other children (id. at ¶ 108).

Because the allegations in Plaintiffs’ complaint currently fail to demonstrate

actionable harassment on the basis of sex, Plaintiffs’ claim for violation of Title IX is

dismissed without prejudice as against RCSD and the Board of Education. As explained

further below, Plaintiffs will be permitted leave to amend their complaint to attempt to

remedy the deficiency.

D. Section 1983 Claims

Here, Plaintiffs’ claims styled as First Amendment Retaliation (Claim Three),

Violation of Civil Rights under 42 U.S.C. § 1983 (Claim Five), and Equal Protection

(Claim Seven) all appear to arise under § 1983.

“Section 1983 itself creates no substantive rights; it provides only a procedure for

redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515,

519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and

(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir.

1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “A plaintiff must

allege the direct or personal involvement of each of the named defendants in the alleged

constitutional deprivation.” Bellinger v. Fludd, No. 20-CV-2206 (EK)(SIL), 2020 WL

- 28 -

6118823, at *2 (E.D.N.Y. Oct. 16, 2020) (citing Farid v. Ellen, 593 F.3d 233, 249 (2d

Cir. 2010)).

“School districts and boards of education are considered municipal entities that

can be sued under § 1983.” Martinetti v. Mangan, No. 17-cv-5484 (KMK), 2019 WL

1255955, at *7 (S.D.N.Y. Mar. 19, 2019) (quoting Doe by & through Doe v. E.

Irondequoit Cent. Sch. Dist., No. 16-CV-6594, 2018 WL 2100605, at *16 (W.D.N.Y.

May 7, 2018)). But liability only arises under § 1983 if the action is taken pursuant to an

official municipal policy, which can be established by alleging:

(1) a formal policy officially endorsed by the municipality; (2) actions

taken by government officials responsible for establishing the municipal

policies that caused the particular deprivation in question; (3) a practice so

consistent and widespread that, although not expressly authorized,

constitutes a custom or usage of which a supervising policy-maker must

have been aware; or (4) a failure by policymakers to provide adequate

training or supervision to subordinates to such an extent that it amounts to

deliberate indifference to the rights of those who come into contact with the

municipal employees.

Id. at *8-9 (quoting Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y.

2010)).

1. First Amendment Retaliation Claim (Count Three)

Plaintiffs’ First Amendment claim alleges that Plaintiff C.S. had the right to

communicate with the school about her concerns regarding Plaintiff D.S.’s experiences

and to report the instances of bullying and harassment suffered by Plaintiff D.S. They

allege that in retaliation for exercising those rights, defendants took adverse action

against Plaintiffs including labeling Plaintiffs as racist, interrogating Plaintiff D.S. which

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resulted in the investigation by Child Protective Services, blocking Plaintiff C.S. from the

school Facebook page, preventing Plaintiff C.S. from participating in school meetings,

and trying to wrongly retrieve an instrument from Plaintiff C.S.’s son.

To state a claim for First Amendment retaliation, a plaintiff must establish: (1) an

interest protected by the First Amendment; (2) defendants’ conduct or adverse action was

motivated by the exercise of that First Amendment right; and (3) defendants effectively

chilled the exercise of that right or caused some other concrete harm. C.T. v. Valley

Stream Union Free Sch. Dist., 201 F. Supp. 3d 307, 314 (E.D.N.Y. 2016) (citing Mental

Disability Law Clinic, Touro Law Ctr. v. Hogan, 519 F. App’x 714, 717 (2d Cir. 2013));

Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (plaintiff has standing to

assert a First Amendment retaliation claim where “he can show either that his speech has

been adversely affected by the government retaliation or that he has suffered some other

concrete harm. Various non-speech related harms are sufficient to give a plaintiff

standing.”).

Arguably, Plaintiffs have sufficiently pled the elements of such a claim for

purposes of a Fed. R. Civ. P. 12(b)(6) motion. See Jones v. Bay Shore Union Free Sch.

Dist., 947 F. Supp. 2d 270, 275 (E.D.N.Y. 2013) (denying motion to dismiss First

Amendment retaliation claim where “Plaintiff alleges that Defendants retaliated against

him for expressing criticism of the District by prohibiting Plaintiff from entering District

property or attending Board meetings, accusing Plaintiff of having engaged in

inappropriate conduct while employed with the District approximately twenty years ago,

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and disproportionately punishing his daughter.”). But it is not clear from Plaintiffs’

complaint against whom this claim is being asserted. The complaint alleges that in

response to Plaintiff C.S.’s protected speech, “the defendants took adverse action.” (Dkt.

1 at ¶ 286). While some examples are then given that reference particular defendants, the

complaint does not make clear if those are merely supporting factual allegations or a

specific assertion of liability and against whom it is intended to be asserted. Nor has a

policy been identified or alleged to the extent the claim is asserted against the municipal

defendants. 5465 Route 212, LLC v. N.Y. St. Dep’t of Transp., No. 1:19-CV-01510-BKS-

DJS, 2020 WL 6888052, at *9 (N.D.N.Y. Nov. 24, 2020) (“Because the personal

involvement of a defendant is a prerequisite to an award of damages under § 1983, a

plaintiff cannot rely on a group pleading against all defendants without making specific

individual factual allegations.” (quoting Spring v. Allegany-Limestone Cent. Sch. Dist.,

138 F. Supp. 3d 282, 293 (W.D.N.Y. 2015), vacated in part on other grounds, 655 F.

App’x 25 (2d Cir. 2016)); Wilson v. City of New York, No. 15-CV-3192 (KBF), 2016 WL

2858895, at *3 (S.D.N.Y. May 16, 2016) (denying motion to amend where “[t]he

proposed amended complaint does not identify what individual defendant took what

action or otherwise provide any means of distinguishing one defendant’s personal

involvement from another’s. This approach to pleading does not comply with the

requirement, in the § 1983 context, that a defendant only face claims that he has been

sufficiently alleged to have personally committed.”); see also Atuahene v. City of

Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (holding that complaint failed to meet

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minimum pleading standard “[b]y lumping all the defendants together in each claim and

providing no factual basis to distinguish their conduct”).

In light of these deficiencies, Plaintiffs’ claim for First Amendment retaliation is

dismissed without prejudice. As explained further below, Plaintiffs will be permitted

leave to amend their complaint to attempt to remedy the deficiency.

2. Violation of Civil Rights Claim (Count Five)

Plaintiffs’ claim for violation of civil rights is asserted against the “individual

capacity defendants” and alleges that they “violated Title VI, Title IX, the Equal

Protection Claims and the right to Free Speech under the First Amendment to the US

Constitution.” (Dkt. 1 at ¶ 312).

As with the previous claim, this claim fails for a lack of specificity by grouping all

of the individual defendants together without particularizing the allegations tied to each

defendant. See 5465 Route 212, LLC, 2020 WL 6888052, at *9. This lack of specificity

subjects the claim to dismissal.

But additionally, the claim fails for seemingly being duplicative of the relief

sought elsewhere in the complaint and not identifying an independent claim for relief.

H.B. and S.B., 2012 WL 4477552, at *18 (dismissing claim for violation of federal civil

rights alleging a failure to address bullying and creating a hostile educational

environment because pleading was not clear what claim was being asserted).

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In light of these deficiencies, Plaintiffs’ claim for violation of civil rights is

dismissed without prejudice. As explained further below, Plaintiffs will be permitted

leave to amend their complaint to attempt to remedy the deficiency.

3. Equal Protection Claim (Count Seven)

Plaintiffs’ Equal Protection claim alleges that the actions and inactions of the

individual defendants violated Plaintiffs’ rights guaranteed by the Fourteenth

Amendment.

“Generally, to maintain an equal protection claim, a plaintiff must ‘show adverse

treatment of individuals compared with other similarly situated individuals and that such

selective treatment was based on impermissible considerations such as race, religion,

intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith

intent to injure a person.’” Terrill v. Windham-Ashland-Jewett Cent. Sch. Dist., 176 F.

Supp. 3d 101, 110 (N.D.N.Y. 2016) (quoting Miner v. Clinton Cty., 541 F.3d 464, 474

(2d Cir. 2008)). “In the alternative, he could pursue an ‘equal protective claim under a

theory of discriminatory application of the law, or under a theory of discriminatory

motivation underlying a facially neutral policy or statute.’” Rodriguez v. Clinton, 357 F.

App’x 355, 357 (2d Cir. 2009) (quoting Pyke v. Cuomo, 258 F.3d 107, 108-09 (2d Cir.

2001)).

Here, like the previous claims, this claim fails for a lack of specificity in pleading

by grouping all of the individual defendants together without particularizing the

allegations tied to each defendant. See 5465 Route 212, LLC, 2020 WL 6888052, at *9.

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But the claim as pled also fails on the merits. It is not wholly clear what theory

Plaintiffs’ equal protection claims rests upon, but it appears to derive from their claim

that the RCSD failed to prevent the alleged race and gender-based harassment. For the

same reasons that Plaintiffs’ Title VI and Title IX fail for insufficiently pleading

impermissible discrimination on the basis of race or sex, so too does their claim for equal

protection which arises from the same exact facts. Patrick, 437 F. Supp. 3d at 181

(denying equal protection claim for deliberate indifference when any harassment that

occurred was motivated not by plaintiff’s sex but because they blamed him for getting a

coach suspended); D.C., 2017 WL 3017189, at *6 (“To state a claim for violation of the

Fourteenth Amendment’s Equal Protection Clause, the plaintiff ‘must allege that a

government actor intentionally discriminated against them on the basis of race, national

origin or gender.’” (quoting Hayden v. Cty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999));

Chandrapaul v. City Univ. of New York, No. 14CIV790AMDCLP, 2016 WL 1611468, at

*23 (E.D.N.Y. Apr. 20, 2016) (“Like Title VI and Section 1981, allegations of

discrimination under the Equal Protection Clause ‘require that intentional discrimination

be alleged in a non-conclusory fashion.’ Therefore, the plaintiff’s claims under the Equal

Protection Clause also fail.”) (citations omitted); Mislin v. City of Tonawanda Sch. Dist.,

No. 02-CV-273S, 2007 WL 952048, at *12 n.16 (W.D.N.Y. Mar. 29, 2007) (“[T]here is

no evidence in the record of any race-based discrimination (or reverse-race

discrimination) against Mislin. In any event, Plaintiffs’ race-based equal protection

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claims are also subject to dismissal because they are subsumed by their Title VI

claims.”).

In light of these deficiencies, Plaintiffs’ claim for equal protection is dismissed

without prejudice. As explained further below, Plaintiffs will be permitted leave to

amend their complaint to attempt to remedy the deficiency.

E. Municipal Liability for Failure to Train and Supervise (Count Four)

Plaintiffs seek to hold Defendants RCSD and the Board of Education of the RCSD

liable for failing to adequately train school employees to prevent, investigate, and report

bullying and discrimination, and supervise its employees to ensure compliance with the

law. They contend that Defendants RCSD and the Board of Education of the RCSD

failed to comply with DASA, which sets requirements for bullying prevention.

As an initial matter, to the extent this claim can fairly be read to allege a cause of

action arising from Defendants’ alleged failure to comply with DASA, the claim is

subject to dismissal, as no private right of action is contemplated by DASA. See E.

Irondequoit Cent. Sch. Dist., 2018 WL 2100605, at *20 (“[C]ourts in this Circuit have

held that there is no private right to sue under DASA.”); Terrill, 176 F. Supp. 3d at 109

(“Accordingly, for all of these reasons, the Court finds that DASA does not provide a

private right of action, either express or implied, and Plaintiffs’ third and fourth causes of

action must therefore be dismissed.”).

In their opposition to the motion to dismiss, Plaintiffs argue that the claim is not

intended to assert an independent claim for failure to comply with DASA, but rather, that

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the failure to comply with DASA is evidence that Defendants RCSD and Board of

Education of RCSD failed to train their employees which caused the deliberate

indifference to the race and gender-based bullying suffered by Plaintiff D.S. (Dkt. 5 at

¶¶ 128-29). Here, the allegations in the complaint do not clearly set forth the position

Plaintiffs now take. In addition, because the Court concludes that Plaintiffs have not

sufficiently pled an underlying claim for race or gender-based discrimination, the failure

to train claim, to the extent based upon the same facts, would similarly fail. See Mislin,

2007 WL 952048, at *17 (“This Court has found that neither Greene nor Freedman

violated Mislin’s rights under the Fourth or Fourteenth Amendments. As such, a finding

of liability as to the School District for failure to hire, retain, train or supervise is

precluded since there was no constitutional violation or injury.”).

In light of these deficiencies as well as a lack of clear specificity as to the nature of

the claim being asserted, Plaintiffs’ claim for failure to train is dismissed without

prejudice. As explained further below, Plaintiffs will be permitted leave to amend their

complaint to attempt to remedy the deficiency.

F. State law claim Negligent Supervision/Failure to Keep Safe (Count Six)

Count Six in Plaintiffs’ complaint alleges that defendants failed to take appropriate

action and were negligent in protecting Plaintiff D.S. from abuse, which caused her injury

and suffering. “Schools are under a duty to adequately supervise the students in their

charge and they will be held liable for foreseeable injuries proximately related to the

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absence of adequate supervision.” Motta ex rel. Motta v. Eldred Cent. Sch. Dist., 141

A.D.3d 819, 820 (2016) (quoting Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994)).

Arguably, Plaintiffs have sufficiently pled the elements of such a claim for

purposes of a Fed. R. Civ. P. 12(b)(6) motion. This claim though suffers from the same

flaw as several other of Plaintiffs’ claims in that it is unclear from the allegations which

defendants the claim is being asserted against. See 5465 Route 212, LLC, 2020 WL

6888052, at *9. With multiple defendants who possess varying relationships to Plaintiffs

and conduct that spans over several years, it is simply impermissible to premise liability

on a group basis as Plaintiffs have attempted to do.

In light of these deficiencies, Plaintiffs’ claim for negligence is dismissed without

prejudice. As explained further below, Plaintiffs will be permitted leave to amend their

complaint to attempt to remedy the deficiency.

In sum and for the foregoing reasons, the District Defendants’ motion to dismiss is

denied in part and granted in part.

III. Defendant Tarragrossa’s Motion for Judgment on the Pleadings

Defendant Tarragrossa moves for judgment on the pleadings on the claims alleged

against her in Plaintiffs’ complaint, arguing that they fail to state cognizable claims.

A. Count One and Count Two

Because Defendant Tarragrossa is an individual defendant, for the same reasons

set forth above, any claims asserted against her pursuant to Title VI and Title IX must be

dismissed. See Sutton, 2020 WL 6532937, at *6 (“The Supreme Court has held that

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while Title IX creates liability for institutions and programs that receive federal funds, it

does not ‘authoriz[e] suit[s] against school officials, teachers, and other individuals.’”).

Her motion for judgment on the pleadings on these two claims accordingly is granted and

the claims are dismissed with prejudice.

B. Section 1983 Claims

For the same reasons set forth above that Plaintiffs’ § 1983 claims fail against the

other individual defendants, so too do they fail to state a claim against Tarragrossa, and

on this basis her motion for judgment on the pleadings is granted.

But Tarragrossa also asserts an additional basis for dismissal against her in that

she cannot be considered a state actor to support a § 1983 claim. As outlined above,

“[a]n action under § 1983 has two elements: the defendant must (1) act under ‘color of

state law’ to (2) deprive the plaintiff of a statutory or constitutional right.” Kennedy v.

New York, 167 F. Supp. 3d 451, 460 (W.D.N.Y. 2016) (citing Back v. Hastings on

Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004)). “Because the United

States Constitution regulates only the Government, not private parties, a litigant claiming

that his constitutional rights have been violated must first establish that the challenged

conduct constitutes ‘state action.’” United States v. Int’l Bhd. of Teamsters, Chauffeurs,

Warehousemen & Helpers of Am., AFL-CIO, 941 F.2d 1292, 1295 (2d Cir. 1991). As

such, “[s]ection 1983 addresses only those injuries caused by state actors or those acting

under color of state law.” Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992).

There are limited instances where a private party can be considered a state actor:

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For the purposes of section 1983, the actions of a nominally private entity

are attributable to the state when: (1) the entity acts pursuant to the

“coercive power” of the state or is “controlled” by the state (“the

compulsion test”); (2) when the state provides “significant encouragement”

to the entity, the entity is a “willful participant in joint activity with the

[s]tate,” or the entity’s functions are “entwined” with state policies (“the

joint action test” or “close nexus test”); or (3) when the entity “has been

delegated a public function by the [s]tate” (“the public function test”).

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)

(quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296,

121 S. Ct. 924, 148 L.Ed.2d 807 (2001)); Ortolaza ex rel. E. v. Capitol Region Educ.

Council, 388 F. Supp. 3d 109, 117–18 (D. Conn. 2019) (“The effect of these

considerations is to create a relatively high bar for an advocate seeking to demonstrate

that a private party’s conduct is that of a state actor, with its attendant constitutional

liabilities.”).

Defendant Tarragrossa is a private party, employed by the Center for Youth and

not by the RCSD, as acknowledged in Plaintiffs’ complaint. (Dkt. 1 at ¶ 26 “VALERIE

TARRAGROSSA, (aka Ms. T), was all times mentioned herein, an employee of the

Center for Youth Services who was contracted by RCSD to work at School 58 full

time.”)). As such, she is not a state actor for purposes of § 1983. In opposition to the

motion for judgment on the pleadings, Plaintiffs argue that a determination on whether

Defendant Tarragrossa is a state actor is premature without the benefit of discovery to

explore whether she possibly meets the compulsion test, the joint action test, or public

function test. (Dkt. 29-2 at 2-3). Because the complaint alleges that Defendant

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Tarragrossa is employed by a private party and does not allege any factual bases to deem

her to be a state actor, and where the claims substantively fail regardless of status, the

Court rejects Plaintiffs’ request to delay resolution of this issue. Rodriguez v. Clinton,

357 F. App’x 355, 357 (2d Cir. 2009) (denying assertion of § 1983 claim for lack of

evidence of “state action” where defendants merely acquiesced in decision by school’s

Parent Teacher Student Association, a private entity); Stefanoni v. Darien Little League,

Inc., 101 F. Supp. 3d 160, 173 (D. Conn. 2015) (“At the pleading stage, a plaintiff need

not conclusively prove state action but must plausibly allege that it occurred by relying

on more than “vague and conclusory” statements.”).

For these reasons, Plaintiffs’ claims against Defendant Tarragrossa arising under

Section 1983 are dismissed without prejudice. As explained further below, Plaintiffs will

be permitted leave to amend their complaint to attempt to remedy the deficiency. Finally,

to the extent Plaintiffs’ remaining claim for negligence is intended to be asserted against

Defendant Tarragrossa, it is dismissed without prejudice for the reasons explained above

with respect to the District Defendants.

IV. Plaintiffs’ Cross-Motion to Amend

In response to Defendant Tarragrossa’s Motion for Judgment on the Pleadings,

Plaintiffs cross-moved to amend their complaint.

“A district court has broad discretion in determining whether to grant leave to

amend[.]” Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000). Pursuant to Rule

15(a)(2), which provides that once the time for leave to amend as of right has expired, “a

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party may amend its pleading only with the opposing party’s written consent or the

court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ.

P. 15(a)(2).

In addition, Local Civil Rule 15 provides:

(a) A movant seeking to amend or supplement a pleading must attach an

unsigned copy of the proposed amended pleading as an exhibit to the

motion. The proposed amended pleading must be a complete pleading

superseding the original pleading in all respects. No portion of the prior

pleading shall be incorporated into the proposed amended pleading by

reference.

(b) Unless the movant is proceeding pro se, the amendment(s) or

supplement(s) to the original pleading shall be identified in the proposed

pleading through the use of a word processing “redline” function or other

similar markings that are visible in both electronic and paper format.

Here, Plaintiffs did not provide a “redline” copy of their proposed amended

pleading with their motion to amend, as required. Upon objection from Defendants,

Plaintiffs sought leave from this Court to be relieved from this requirement (Dkt. 33),

which was denied (Dkt. 34). The proposed pleading contains 338 numbered paragraphs

and it is unreasonable to expect the parties or the Court to assess the amendments

contained therein without the benefit of a “redline” version of the document,

notwithstanding counsel’s affidavit which explains the nature of the amendments. This

failure alone subjects the motion to amend to dismissal. Doe v. E. Irondequoit, 2018 WL

2100605, at *5-6 (denying motion to amend in part for failure to provide a “redline”

version of the proposed pleading: “It is crystal clear, however, that Local Rule 15(b)

applies to Plaintiffs’ motion to file a Second Amended Complaint, and because Plaintiffs

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did not comply with that rule, the motion may be denied for that reason alone.”). In

addition, because the proposed pleading accompanying the motion contains matters now

resolved in this Decision and Order, permitting the filing of that pleading would not

advance the litigation in a meaningful way.

As noted herein, the Court does find that it is in the interest of justice to permit

Plaintiffs leave to amend their complaint to attempt to remedy some of the deficiencies

identified herein. Accordingly, within 30 days of the date of this Decision and Order,

Plaintiffs may file an amended complaint attempting to allege any of the claims

dismissed herein without prejudice. Not only must any amended complaint cure the

deficiencies identified herein in the event Plaintiffs seek to try to pursue a claim that has

been dismissed without prejudice, but the amended complaint must also correct other

deficiencies identified in the parties’ papers, including misspelling of names, failure to

redact Plaintiff D.S.’s first name in multiple locations, and be accompanied by a motion

to proceed anonymously, if that remains Plaintiffs’ intention. See Roe v. City of N.Y., No.

20-CV-9635 (LLS), 2020 WL 6875424, at *2 (S.D.N.Y. Nov. 20, 2020) (“If Plaintiffs

wish to proceed anonymously with this action, they must file under seal, along with their

amended complaint, a motion to proceed anonymously that states the reasons why the

Court should permit them to do so.”); Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB,

2020 WL 6152174, at *1 (E.D.N.Y. Oct. 14, 2020) (“Permitting a party to proceed under

a pseudonym is the ‘exception. . . . A party seeking to proceed anonymously must

sufficiently refute ‘the presumption of disclosure.’” (citations omitted)). Moreover, any

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amended complaint must comply with the requirements of Federal Rule of Civil

Procedure 11. See Lisa Coppola, LLC v. Higbee, No. 1:19-CV-00678, 2020 WL

1154749, at *11 (W.D.N.Y. Mar. 10, 2020) (although granting leave to replead upon

dismissal of claim, reminding plaintiff that any newly asserted claim must also satisfy

Fed. R. Civ. P. 11.). Failure to timely file the amended complaint in accordance with this

Decision and Order will result in a dismissal of Plaintiffs’ complaint with prejudice and

direction to the Clerk to close this case.

CONCLUSION

For the foregoing reasons, the District Defendants’ motion to dismiss is granted in

part and denied in part, Defendant Valerie Tarragrossa’s motion is granted, and Plaintiffs’

cross-motion to amend is denied, but Plaintiffs are granted leave to amend within 30 days

of the date of and in accordance with this Decision and Order.

SO ORDERED.

ELIZABETH A. WOLFORD

United States District Judge

Dated: November 30, 2020

Rochester, New York

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