# DS v. Rochester City School District

> District Court, W.D. New York · March 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10364685

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 7, 2022
- **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/10364685

## How later opinions describe it (automated extraction)

- affirming the district court’s denial of the defendants’ Rule 11 motion where the defendants “failed to make a separate motion for sanctions under Rule 11, and therefore failed to comply with the procedural requirements of the rule”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DS, an infant, by and through her parent
and natural guardian, CS, and CS,
individually, on her own behalf, DECISION AND ORDER

Plaintiffs, 6:19-CV-6528 EAW

v.

ROCHESTER CITY SCHOOL DISTRICT,
et al.,

Defendants.

INTRODUCTION
Plaintiff DS (“Plaintiff DS”) and Plaintiff CS (“Plaintiff CS”) (collectively
“Plaintiffs”) commenced this action against Defendants Rochester City School District
(“RCSD”), the Board of Education of the RCSD (“BOE”), Barbara Deane-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 Torregrossa, Yolanda Asamoah-Wade, Idonia Owens, and Erica Deming,
alleging federal claims pursuant to Title VI and 42 U.S.C. § 1983 and a state law claim
for negligent supervision, arising from incidents at Plaintiff DS’s elementary school.
(Dkt. 48).
Pending before the Court is a renewed motion to dismiss filed by Defendants
RCSD, BOE, Barbara Deane-Williams, Karl Kristoff, Fatimat Reid, Sheelarani Webster,
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Charles Smith, Kim Garlock, Amy Martin, Nancy Resto, Shelly Boyd, Jessica Flanders,
Elizabeth Caveny, Nicole McCoy, Megan Carlett, Yolanda Asamoah-Wade, Idonia
Owens, and Erica Deming (i.e., all defendants except Valerie Torregrossa) (collectively

“Defendants”), pursuant to Rules 11 and 12(b)(6) of the Federal Rules of Civil
Procedure.1 In a Decision and Order dated November 30, 2020 (“D&O”), the Court
granted Defendants’ prior motion to dismiss Plaintiffs’ complaint but permitted Plaintiffs
leave to amend. (Dkt. 38). The sufficiency of Plaintiffs’ amended complaint (Dkt. 48) is
now before the Court on the instant motion to dismiss (Dkt. 51). For the reasons set forth

below, Defendants’ motion is granted in part and denied in part.
FACTUAL BACKGROUND
The following facts are taken from the amended complaint. (Dkt. 48). The factual
background of this case is set forth in detail in the D&O, familiarity with which is
assumed for purposes of this Decision and Order. The Court summarizes the key details

below and includes relevant factual additions from the amended complaint. As is
required at this stage of the proceedings, the Court treats Plaintiffs’ allegations as true.
Plaintiff DS is a child residing in the City of Rochester, New York, with her
mother, Plaintiff CS. (Id. at ¶ 4). Plaintiff DS and Plaintiff CS are white. (Id.). Plaintiff

1 Defendants’ motion is supported by an affidavit from counsel. (Dkt. 51-1).
W.D.N.Y. Loc. R. Civ. P. 7(a)(3) states in pertinent part as follows: “An affidavit,
declaration, or affirmation must not contain legal arguments, but must contain factual and
procedural background relevant to the motion it supports.” Nevertheless, counsel has
included legal argument throughout the affidavit. The Court will consider the affidavit
but reminds all parties that compliance with the Court’s Local Rules is expected.
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DS 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, 42). The allegations in the amended complaint arise from incidents

occurring at School No. 58.
Plaintiff DS began attending School No. 58 in the fall of 2016 for her third-grade
school year. (Id. at ¶ 39). Prior to the 2016 presidential election, Plaintiff DS’s teacher,
Defendant Flanders, conducted a mock election and asked each of the children for whom
they would cast their vote to be President of the United States. (Id. at ¶ 44). Plaintiff DS

stated that she would vote for Donald Trump, whereas her other classmates supported
Hillary Clinton’s candidacy. (Id. at ¶ 45). As a result of Plaintiff DS’s mock vote, she
was perceived by her classmates to be racist and sympathetic to white supremacists. (Id.
at ¶ 46). Plaintiff DS’s classmates called Plaintiff DS and Plaintiff CS racist and told
Plaintiff DS that “only white people vote for Trump and if you vote for Trump, you are a

racist.” (Id. at ¶¶ 48, 50). Plaintiff DS’s mock vote resulted in her being mistreated by
her teacher and harassed by certain African-American and Hispanic classmates in a
manner that was race-based and driven by the fact that Plaintiff DS is white. (Id. at ¶ 49).
Classmates called Plaintiff DS a white racist, white whore, white bitch, and other
derogatory names that identified her race. (Id. at ¶ 59). Defendant Flanders did not allow

Plaintiff DS to participate in activities that other students engaged in, unfairly punished
Plaintiff DS, and did nothing to stop the name-calling by Plaintiff DS’s classmates. (Id.
at ¶¶ 49, 53, 61, 76).
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Following the mock presidential vote, Defendant Resto, the administrative
assistant to the principal, told Plaintiff CS that Plaintiff CS 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 ¶ 70). When Plaintiff CS raised the issue of Plaintiff DS’s
disparate treatment with Defendant Webster, the Principal of School No. 58, the only
option given as a remedy was to move Plaintiff DS to a different third grade classroom,
which they did. (Id. at ¶¶ 84, 86). But in the new third grade classroom, Plaintiff DS was
harassed, physically assaulted, and bullied by a male Hispanic classmate on a regular

basis. (Id. at ¶¶ 89, 90, 96). Plaintiff DS’s Hispanic classmate told her she was racist and
called her other vulgar names which specified her white race. (Id. at ¶ 91). The teachers
did not correct the aggressive behavior and the harassment continued. (Id. at ¶¶ 94, 96).
At the end of that school year, when Plaintiff CS went to the school to attend an RCSD
School Based Planning training, she was told by Defendant Webster that she could no

longer attend and needed to be “invited” and “cooperative” to attend. (Id. at ¶ 103).
In her fourth-grade year, Plaintiff DS continued to be harassed, physically
assaulted, and bullied by the same Hispanic classmate. (Id. at ¶¶ 106, 109). Defendants
Caveny, McCoy, and Webster witnessed or were advised of the ongoing harassment and
bullying of Plaintiff DS by her classmate but failed to address it. (Id. at ¶¶ 107). The

Hispanic classmate told Plaintiff DS that she “sucks big black dick every day.” (Id. at
¶ 113). A request by Plaintiff CS to set up a meeting between herself and that child’s
parents was refused. (Id. at ¶ 119).
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In April of her fourth-grade school year, Plaintiff DS was removed from class by
the school psychologist, Defendant Deming, without parental notice, who engaged in a
fishing expedition about Plaintiff DS’s home life. (Id. at ¶ 121). Plaintiff DS mentioned

that her brother had a BB gun and a referral was made to Monroe County Child
Protective Services. (Id. at ¶ 123). This referral resulted in a visit to their home, which
was determined to be unfounded. (Id. at ¶ 125). The unfounded referral by RCSD was
intended to serve as retaliation against Plaintiff CS for her complaints regarding
discrimination against Plaintiff DS at the school and the school’s failure to keep Plaintiff

DS safe from bullying and harassment. (Id. at ¶ 126).
In addition, the same Hispanic classmate falsely accused Plaintiff DS of using the
“n” word, intentionally stomped on her foot or was otherwise physical with her, and in
one instance stepped on her foot with such intensity that Plaintiff DS required a doctor to
remove part of her toenail. (Id. at ¶¶ 130, 132, 138, 146, 147, 153). On several

occasions, Plaintiff DS asked several adults, including Defendants Caveny and McCoy,
(teachers at School No. 58), Defendant Resto, and the school nurse to call Plaintiff CS,
but she was not permitted to do so. (Id. at ¶ 133, 154, 157).
Plaintiff CS routinely followed up with the school on reports of bullying suffered
by Plaintiff DS. (Id. at ¶ 182). She sent numerous emails and made phone calls to

individuals with authority to enact remedial measures to stop the harassment and
retaliation, including specifically Defendant Owens, Defendant Asamoah-Wade,
Defendant Reid, and Defendant Deane-Williams, but they did not effectively help end the
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harassment of Plaintiff DS. (Id. at ¶¶ 184-191). Most of Plaintiff CS’s communications
were ignored. (Id. at ¶ 192).
In April of 2018, Plaintiff CS informed Defendant Owens, the Chief of School

Equity, and School No. 58 staff that Plaintiff DS was being taken to a doctor to assess the
physical and psychological effects from her experience in school and reminding them that
the school needed to keep Plaintiff DS safe. (Id. at ¶¶ 142, 143). On June 6, 2018,
Plaintiff CS attended a meeting at RCSD offices to discuss the investigation of bullying
and assaults against Plaintiff DS. (Id. at ¶ 200). Present at the meeting were Defendant

Asamoah-Wade, Defendant Reid, Defendant Owens, and Defendant Kristoff. (Id. at
¶ 201). At the meeting, Plaintiff CS was accused of promoting Plaintiff DS’s safety to
further a social media cause and suggested Plaintiff CS had a political agenda. (Id. at
¶¶ 203, 204). Plaintiff CS was also informed that the RCSD investigation concluded that
the foot stomping incident did not happen. (Id. at ¶ 211).

On June 19, 2018, Plaintiff CS paid an independent education specialist to conduct
an assessment of Plaintiff DS and the specialist determined that Plaintiff DS met the
criteria for Other Health Impairment, Learning Disability, and Emotional Disturbance,
resulting from the bullying, harassment, and abuse she experienced in school. (Id. at
¶¶ 213, 215). RCSD disagreed with the educational assessment and refused to provide

special education services for Plaintiff DS. (Id. at ¶ 218). Plaintiff CS was forced to hire
an attorney and file for mediation, which ultimately resulted in the imposition of a
proposed Section 504 plan for Plaintiff DS. (Id. at ¶ 220).
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In fifth grade, Plaintiff DS continued to experience harassment and bullying by her
classmates because of her race. (Id. at ¶¶ 222, 223, 229). An African-American female
classmate pulled Plaintiff DS’s hair and then falsely reported that DS had used the “n”

word. (Id. at ¶¶ 231, 235). The school credited the classmate’s fabrication because of
their racial prejudice against Plaintiff DS and Plaintiff DS was forced to endure a “Peace
Circle” to discuss her use of that word. (Id. at ¶¶ 236, 237). In the Peace Circle,
Defendant Torregrossa, an employee of the Center for Youth on contract to the RCSD,
and Defendants Martin and Carlett (teachers at School No. 58), accused Plaintiff DS of

being racist based on her alleged use of the “n” word. (Id. at ¶¶ 237, 239). The Peace
Circle reinforced the inflammatory allegation to her classmates that Plaintiff DS was a
racist and was a form of harassment. (Id. at ¶ 243).
On September 24, 2018, a meeting was held about the hair pulling incident at
which Plaintiff CS learned that parents of Plaintiff DS’s classmates were informed that

Plaintiff DS had made a racially charged statement. (Id. at ¶¶ 246, 247). This further
increased the perception that Plaintiffs were racists, even though Plaintiff DS denied
having used the racially charged statement. (Id. at ¶¶ 248, 249). At a meeting the
following day with Defendant Smith (the Assistant Principal at School No. 58),
Defendant Webster, Defendant Boyd (the Parent Liaison at the school), parents of five

classmates, and two parent engagement representatives, Plaintiff CS was again accused
of being racist and raising racist children. (Id. at ¶¶ 252, 255). Each of the parents at the
meeting said that they wanted Plaintiff DS removed from school. (Id. at ¶ 263).
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Incidents of harassment, bullying, and physical contact continued in September
and October of that school year. (Id. at ¶¶ 270-286). Many of the vulgar words Plaintiff
DS was called by her classmates were preceded by her race (e.g., white bitch, etc.). (Id.

at ¶ 287). Plaintiff CS 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 CS ended up filing the reports herself. (Id. at ¶ 300). The harassment and
assaults against Plaintiff DS continued in November, December, and January, including
an incident in January of 2019 where Plaintiff DS was called a “Saltine” by a classmate, a

term of derision against white people. (Id. at ¶¶ 301-305). Following several requests by
Plaintiff CS that steps be taken by the school to protect Plaintiff DS, in January of 2019,
Plaintiff CS was promised that one additional adult would be placed in DS’s classroom,
but it did not happen immediately and when it did, it was not adequate. (Id. at ¶¶ 309,
325). Twice Plaintiff was unfairly suspended when she was merely defending herself

from bullying and the suspensions were issued without notice and explanation as
required. (Id. at ¶¶ 312, 333).
In February 2019, Defendant Martin (a teacher) accused Plaintiff DS of coloring a
picture for Black Lives Matter week in “blackface.” (Id. at ¶¶ 315, 316). Defendant
Martin then loudly stated that Plaintiff DS was being racist in front of her classmates.

(Id. at ¶ 317). The statement by Defendant Martin was part of a pattern of racial
discrimination suffered by Plaintiff DS as a result of her being a minority student. (Id. at
¶ 323). At the end of that school year, a one-on-one aide was provided for Plaintiff DS,
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which made her stand out from the other children but was necessary for her safety. (Id. at
¶ 340).
As a result of Plaintiff CS’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 ¶¶ 345, 347, 349). Plaintiffs were not given access to
enter school classrooms, unlike family members of Plaintiff DS’s African-American and
Hispanic classmates. (Id. at ¶ 354). Defendants also retaliated against Plaintiff CS’s
older son as a result of Plaintiff CS’s complaints about the bullying and harassment she

and Plaintiff DS had received. (Id. at ¶¶ 355, 361).
Plaintiffs assert claims against RCSD and BOE for violations of Title VI, 42
U.S.C. § 2000d (Count One) and municipal liability for failure to train and supervise
pursuant to 42 U.S.C. § 1983 (Count Four). They bring claims pursuant to 42 U.S.C.
§ 1983 for First Amendment retaliation (Count Two) against Defendant Webster,

Defendant Garlock, and Defendant Resto, and violation of Equal Protection and Due
Process (Count Three) against all individual defendants, and a state law claim for
negligent supervision/failure to keep safe against all Defendants (Count Five). Plaintiffs
seek compensatory and punitive damages, attorneys’ fees, costs, and interest as damages.
(Id. at 62).

PROCEDURAL BACKGROUND
Plaintiffs filed their complaint on July 16, 2019. (Dkt. 1). Defendants filed a
motion to dismiss the complaint on September 9, 2019. (Dkt. 4). Plaintiffs filed a
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motion to amend their complaint on September 3, 2020. (Dkt. 29). On November 30,
2020, the Court granted Defendants’ motion to dismiss in part and granted Plaintiffs
leave to amend. (Dkt. 38).

On February 26, 2021, Plaintiffs filed their amended complaint. (Dkt. 48).
Defendants filed the instant motion to dismiss on March 22, 2021. (Dkt. 51). Plaintiffs
filed their opposition on April 13, 2021 (Dkt. 54), and Defendants filed their reply on
April 20, 2021 (Dkt. 55).
DISCUSSION

I. Legal Standard on Motion to Dismiss
“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).
II. Defendants’ Rule 12(b)(6) Motion to Dismiss
A. Plaintiffs’ Title VI Claim (Count One)
Count One of Plaintiffs’ amended complaint alleges a violation of Title VI. 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).
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“To state a claim under Title VI, a plaintiff must allege that ‘the defendant
discriminated against him on the basis of race, that that discrimination was intentional,
and that the discrimination was a substantial or motivating factor for the defendant’s

actions.’” Bailey v. New York L. Sch., No. 19-3473, 2021 WL 5500078, at *4 (2d Cir.
Nov. 24, 2021) (quoting Tolbert, 242 F.3d at 69), petition for cert. filed, (Feb 25, 2022)
(No. 21-7208); see Minto v. Molloy Coll., No. 16CV276 (KAM)(AYS), 2021 WL
1394329, at *9 (E.D.N.Y. Jan. 21, 2021) (“To state a claim under Title VI a plaintiff must
plausibly allege: (1) that they were discriminated against on the basis of race; (2) that the

discrimination was intentional; and (3) that the discrimination was a substantial
motivating factor in the defendant’s action.”), report and recommendation adopted, No.
16-CV-276, 2021 WL 804386 (E.D.N.Y. Mar. 3, 2021). In the context of a school
setting:
[A] school district [may be] liable for intentional discrimination when it has
been ‘deliberately indifferent’ to teacher or peer harassment of a student.
However, [l]iability only arises if a plaintiff establishes: (1) substantial
control, (2) severe and discriminatory harassment, (3) actual knowledge,
and (4) deliberate indifference. A school district will be subject to liability
for third-party conduct only if it exercises substantial control over both the
harasser and the context in which the known harassment occurs, and a
school district . . . exercises substantial control over the circumstances of
the harassment when it occurs during school hours and on school grounds.

Dayes v. Watertown City Sch. Dist., No. 5:20-CV-964 (GLS/ML), 2021 WL 4407385, at
*7 (N.D.N.Y. Sept. 27, 2021) (quotations and citations omitted); 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
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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)). Generally, “[a] plaintiff alleging racial . . .
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. Manalov v.
Borough of Manhattan Comm. Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (quoting

Yusuf v. Vassar Coll., 35 F.3d 709, 712-14 (2d Cir. 1994)). 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 at the same time, “when
weighing the adequacy of a response, a court must accord sufficient deference to the
decisions of school disciplinarians.” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655,
666 (2d Cir. 2012).

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Defendants argue that Plaintiffs have not plausibly pled a claim for a violation of
Title VI or set forth any viable factual allegations of discrimination on the basis of race.2
The Court disagrees.

Plaintiffs have adequately alleged that the RCSD and BOE exercised adequate
control over the circumstances giving rise to Plaintiffs’ allegations, possessed the
authority to address the allegations, and had actual notice of the alleged harassment. “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, harassment alleged in Plaintiffs’ amended complaint
purportedly occurred on school grounds and Plaintiffs have sufficiently alleged that the
school had control over and was aware of the alleged harassment against Plaintiff DS. In
addition, Plaintiffs have now amended their complaint to expressly allege that the alleged

harassment faced by Plaintiff DS was discriminatorily race-based and driven by the fact

2 Defendants also devote a section of their memorandum of law to argue that
Plaintiffs’ Title VI claims against the individual defendants be dismissed. While the
Court agrees that such claims are not permissible against individual parties as was
addressed in the D&O, see Eldars 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.”), the amended complaint
explicitly indicates that Plaintiffs’ Title VI claim is only being asserted against RCSD
and BOE. (Dkt. 48 at 49). Accordingly, Defendants’ argument is misplaced.
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that she is white.3 The amended complaint alleges that Plaintiff DS was called names and
assaulted with specific reference to and as a result of her race, and not merely related to
her political beliefs. In addition, Plaintiffs have plausibly alleged that the harassment was

so severe, pervasive, and objectively offensive that it deprived Plaintiff DS of access to
the educational benefits or opportunities provided by the school. Accordingly, taking the
facts in the amended complaint as true, the Court concludes that Plaintiffs have alleged a
plausible claim for a violation of Title VI. Defendants’ motion to dismiss this claim is
denied.

B. Section 1983 Claims
Plaintiffs’ claims styled as First Amendment Retaliation (Count Two), Violation
of Equal Protection and Due Process (Count Three), and Municipal Failure to Train and
Supervise (Count Four) all arise under 42 U.S.C. § 1983.

3 The amended complaint alters certain factual allegations from those in the original
complaint. For example, in the complaint, Plaintiffs alleged that Plaintiff DS was called
names such as “cunt, bitch, whore and pussy,” (Dkt. 1 at ¶ 69), whereas the amended
complaint alleges that she “was called white racist, white pussy, white bitch, white
whore, white hoe, white pussy and white cunt by her Black and Hispanic classmates,”
(Dkt. 48 at ¶ 59). While the amendments do not directly contradict the earlier allegations,
the failure by Plaintiffs to include the race-related name calling at the outset is unusual.
The Court need not resolve any issue raised by the change in allegations at this time, but
may address it at a later time, if appropriate. Sucesores de Don Carlos Nunez y Dona
Pura Galvez, Inc. v. Societe Generale, S.A., No. 20-CV-851 (KMW), 2021 WL 6065758,
at *6 (S.D.N.Y. Dec. 22, 2021) (“When an amended complaint’s factual allegations
conflict with allegations made in an earlier complaint, courts in this circuit commonly
accept the allegations of the amended complaint as true for the purposes of a motion to
dismiss, and allow earlier pleadings to be considered at summary judgment or at trial (as
controvertible, rather than conclusive, admissions).”).

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“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)).

“Personal involvement in the deprivation of a federal constitutional right is the
sine qua non of liability under § 1983.” Rupp v. City of Buffalo, No. 17-CV-1209S, 2021
WL 1169182, at *5 (W.D.N.Y. Mar. 29, 2021); see also Tangreti v. Bachmann, 983 F.3d
609, 616 (2d Cir. 2020) (a § 1983 plaintiff must establish “that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution”

(quotation and citation omitted)); Bellinger v. Fludd, No. 20-CV-2206 (EK)(SIL), 2020
WL 6118823, at *2 (E.D.N.Y. Oct. 16, 2020) (“A plaintiff must allege the direct or
personal involvement of each of the named defendants in the alleged constitutional
deprivation.” (citing Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010))).
Municipalities cannot be held vicariously liable under § 1983 for the constitutional

torts of their employees, nor can they be subject to liability under § 1983 pursuant to a
theory of respondeat superior. See Collins v. City of Harker Heights, Tex., 503 U.S. 115,
122 (1992); Canton v. Harris, 489 U.S. 378, 385 (1989). Instead, where a plaintiff seeks
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to impose liability on a municipality, he must allege that the constitutional violation was
caused by “action pursuant to official municipal policy.” Connick v. Thompson, 563 U.S.
51, 60 (2011) (quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691

(1978)).
School districts and boards of education constitute municipal entities subject to
claims of liability pursuant to § 1983. Doe by & through Doe v. E. Irondequoit Cent.
Sch. Dist., No. 16-CV-6594 (CJS), 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 *16 (quoting Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y.
2010)); Hurdle v. Bd. of Educ. of City of New York, 113 F. App’x 423, 424-25 (2d Cir.
2004) (“‘A school district’s liability under Monell may be premised on any of 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.”’” (citation
omitted)); see also Dole v. Huntington Union Free Sch. Dist., 699 F. App’x 85, 87 (2d
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Cir. 2017) (“A school district is a municipal entity, and as such, cannot be held liable
pursuant to § 1983 solely because of the discriminatory actions of one of its employees”
but only “if its policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury” (quotation
and citation omitted)). Only in limited circumstances can a failure to train “certain
employees about their legal duty to avoid violating citizens’ rights . . . rise to the level of
an official government policy for purposes of § 1983.” RF v. S. Country Cent. Sch. Dist.,
No. 13CV2710 (SJF)(AKT), 2016 WL 5349782, at *11 (E.D.N.Y. Sept. 23, 2016)

(quoting Connick, 563 U.S. at 61).
Claims against individuals in their official capacity are considered to be a suit
against the municipality. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-
capacity suit is, in all respects other than name, to be treated as a suit against the entity. It
is not a suit against the official personally, for the real party in interest is the entity.”

(citation omitted); Adams-Flores v. City of New York, No. 18-CV-12150 (JMF), 2020
WL 996421, at *4 (S.D.N.Y. Mar. 2, 2020) (“[Plaintiff’s] Section 1983 claims brought
against the individual Defendants in their official capacities are dismissed as duplicative
of the claims against the City.” (citing Anemone v. Metro. Transp. Auth., 410 F. Supp. 2d
255, 264 n.2 (S.D.N.Y. 2006) (“An official-capacity suit is . . . to be treated as a suit

against the entity. . . . Where, as here, the entity also is named as a defendant, the official
capacity claims are redundant and are properly dismissed.”))); Phillips v. Cty. of Orange,
894 F. Supp. 2d 345, 385 n.35 (S.D.N.Y. 2012) (“Within the Second Circuit, where a
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plaintiff names both the municipal entity and an official in his or her official capacity,
district courts have consistently dismissed the official capacity claims as redundant.”).
Accordingly, as a threshold matter, Plaintiffs’ § 1983 official capacity claims against the

individual defendants are appropriately dismissed.
1. First Amendment Retaliation Claim Against Defendants
Webster, Resto, and Garlock (Count Two)

Plaintiffs’ First Amendment retaliation claim alleges that Plaintiff CS had the right
to communicate with the school about her concerns regarding Plaintiff DS’s experiences
and to report the instances of bullying and harassment suffered by Plaintiff DS. Plaintiffs
allege that in retaliation for exercising those rights, Defendants took adverse action
against Plaintiffs including labeling Plaintiffs as racist, interrogating Plaintiff DS which
resulted in the investigation by Child Protective Services, blocking Plaintiff CS from the
school Facebook page, preventing Plaintiff CS from participating in school meetings, and
trying to wrongly retrieve an instrument from Plaintiff CS’s son. Plaintiffs allege that
Defendants portrayed them as racists to parents and staff in an effort to chill Plaintiffs’
free speech and exclude them from the school.

To state a claim for First Amendment retaliation, a plaintiff must plausibly allege:
(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

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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.”); see also Searle v. Red Creek Cent. Sch. Dist., No. 21-CV-6086-FPG,
2021 WL 5086405, at *4 (W.D.N.Y. Nov. 2, 2021) (“The elements of a First Amendment
retaliation claim are dependent on the factual context of the case.”). “In this context, an

adverse action is conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights.” A.S. v. City Sch. Dist. of
Albany, No. 121CV620 (BKS/ATB), 2022 WL 356697, at *14 (N.D.N.Y. Feb. 7, 2022)
(quotation and citation omitted)). A causal connection between the protected interest and
adverse action is demonstrated when a plaintiff pleads that “the protected speech was a

substantial motivating factor in the adverse action.” Id. at *15; Sutton v. Stony Brook
Univ., No. 18-CV-7434(JS)(ARL), 2021 WL 3667013, at *10 (E.D.N.Y. Aug. 18, 2021)
(“With regard to the causal connection element, to survive a motion to dismiss, a plaintiff
must allege facts to show that the adverse action would not have been taken absent the
plaintiff’s protected speech.”).

Consistent with its conclusions in D&O, the Court finds that while not a model of
clarity, Plaintiffs’ amended complaint has sufficiently pled the elements of such a claim
so as to withstand dismissal at this stage of the litigation. See Jones v. Bay Shore Union
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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,
and disproportionately punishing his daughter.”).
In the D&O, the Court found the claim was not plausibly alleged because
Plaintiffs had not adequately alleged which defendants this claim was asserted against or

identified specific conduct sufficient to establish personal involvement for each defendant
for purposes of § 1983. See A.S., 2022 WL 356697, at *16 (“In the context of Plaintiff’s
First Amendment retaliation claims, the question of the personal involvement of the
individual defendants will merge with the question of whether the adverse actions
Plaintiff alleges they took plausibly state a retaliation claim.”).

The amended complaint appears to now only assert a First Amendment retaliation
claim against individual Defendant Webster, Defendant Resto, and Defendant Garlock,
and not against the municipalities or remaining individual defendants. The Court will
accordingly address the allegations against each of these defendants.
a. Defendant Webster

The facts underlying Plaintiffs’ First Amendment retaliation claim against
Defendant Webster, the school principal, involve Defendant Webster’s decision to no
longer allow Plaintiff CS to participate in School Based Planning Meetings, which she
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had attended in the past. (Dkt. 48 at ¶¶ 103, 379k). Plaintiffs allege that Defendant
Webster unexpectedly informed Plaintiff CS that she needed to be “invited” and
“cooperative” in order to attend the meetings. (Id. at ¶¶ 104, 379k). Plaintiffs also allege

that Webster was among those who referred Plaintiffs to Monroe County Child Protective
Services in retaliation for Plaintiff CS’s complaints about the harassment and bullying
Plaintiff DS suffered. (Id. at ¶¶ 123, 126). At this juncture, these allegations are
sufficient to establish that Plaintiffs have demonstrated an interest protected by the First
Amendment and that Defendant Webster took adverse action in response to the exercise

of those First Amendment rights. Plaintiffs adequately allege that Defendant Webster’s
actions effectively chilled Plaintiff CS’s ability to participate in school meetings and
resulted in additional concrete harm arising from the unfounded and retaliatory home
visit from Child Protective Services. Accordingly, Defendants’ motion to dismiss this
claim as to Defendant Webster is denied.

b. Defendant Resto
The allegations against Defendant Resto (Defendant Webster’s administrative
assistant) include the fact that Defendant Resto was a moderator of the School 58
Facebook page. (Id. at ¶ 379g). Plaintiffs allege that in a comment on a Facebook page
that Plaintiff CS created called “Protect DS,” Defendant Resto commented and blamed

Plaintiff CS for Plaintiff DS being bullied. (Id.). Defendant Resto told Plaintiff CS that
the “basics” are taught at home and the “problem is rooted” there, and in addition,
Defendant Resto divulged Plaintiff DS’s confidential academic information. (Id.).
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These allegations are insufficient to state a First Amendment retaliation claim.
There is no allegation that Defendant Resto in any way infringed or impeded on
Plaintiffs’ ability to participate on the School 58 Facebook page or otherwise limited

Plaintiffs’ speech. That Defendant Resto posted a negative comment about Plaintiff CS
on Plaintiff CS’s Facebook page may have been unwelcome to Plaintiffs but it does not
sufficiently allege that Defendant Resto chilled Plaintiffs’ First Amendment rights or
ability to continue to express their views there. In short, there are no allegations that
Defendant Resto’s actions amount to retaliation. Accordingly, Defendants’ motion to

dismiss this claim as to Defendant Resto is granted.
c. Defendant Garlock
Defendant Garlock, School 58’s Assistant Principal, was the administrator of
School 58’s Facebook page. (Id. at ¶ 379h). Defendant Garlock also participated in the
conversation with Defendant Resto on Plaintiff CS’s Facebook page and later the same

day, removed Plaintiff CS from the School 58 Facebook page. (Id.). Defendant Garlock
blocked Plaintiff CS’s access to the school Facebook page for several months, which
prevented Plaintiffs from learning about school information and activities posted there
and from participating in school events of which they were unaware as a result. (Id. at ¶¶
379h, 379i).

At this stage of the proceedings and taking the allegations as true, the Court finds
that Plaintiffs have sufficiently alleged a claim against Defendant Garlock. To the extent
that Plaintiffs had a First Amendment interest in participating on the school social media
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page, Plaintiffs have alleged that Defendant Garlock restricted her ability to do so. They
allege that Defendant Garlock took that step as a result of Plaintiffs’ complaints about
harassment and bullying, and that the restriction had a negative impact on Plaintiffs.

Accordingly, Defendants’ motion to dismiss this claim against Defendant Garlock is
denied.
2. Equal Protection and Due Process Claim (Count Three)
Plaintiffs’ third claim alleges that the actions and inactions of the individual
defendants violated Plaintiffs’ rights guaranteed by the Fourteenth Amendment.

Specifically, they allege that the individual defendants violated the Equal Protection
Clause by treating Plaintiff DS differently than similarly situated African-American and
Hispanic classmates. They also allege a violation of Due Process rights on the ground
that Plaintiff DS was suspended twice without following the Code of Conduct regarding
notice and opportunity to be heard.

a. Equal Protection
“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)); I.S. by & through Disla v. Binghamton City Sch. Dist., 486 F. Supp. 3d
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575, 605 (N.D.N.Y. 2020) (“To state a race-based claim under the Equal Protection
Clause, a plaintiff must allege that a government actor intentionally discriminated against
him [or her] on the basis of his [or her] race.”), reconsideration denied, No. 19-CV-0513

(GTS/ATB), 2020 WL 6689115 (N.D.N.Y. Nov. 13, 2020); D.C. by Conley v. Copiague
Union Free Sch. Dist., No. 16CV4546 (SJF)(AYS), 2017 WL 3017189, at *6 (E.D.N.Y.
July 11, 2017) (“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)). “In the alternative, he could
pursue an ‘equal protection 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)). In the school setting, a violation of the

Equal Protection Clause “can either be through direct action or due to deliberate
indifference to student-on-student harassment.” Faccio v. Eggleston, No. 1:10-CV-699,
2011 WL 3666588, at *10 (N.D.N.Y. Aug. 22, 2011); see also Preston v. Hilton Cent.
Sch. Dist., 876 F. Supp. 2d 235, 244 (W.D.N.Y. 2012) (“[T]eachers, administrators, and
boards of education can be held liable under the Fourteenth Amendment if they have

been deliberately indifferent to discriminatory harassment of a student at school by other
children.”).

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For the same reasons that the Court concludes that Plaintiffs have pleaded
sufficient allegations to support their Title VI claim, so too, do those allegations generally
suffice for an Equal Protection claim. Plaintiffs have adequately alleged that Defendants

were deliberately indifferent to the intentional racially discriminatory harassment of
Plaintiff DS by other students at the school.
But in addition to challenging the substantive merit of the claim, Defendants also
renew their argument that the claim fails for a lack of specificity in pleading arising from
Plaintiffs’ grouping of all of the individual defendants together without clearly

particularizing the allegations tied to each defendant. Indeed, despite being permitted
leave to amend to remedy this shortcoming in their original complaint, Plaintiffs’
amended complaint continues to do a poor job of specifying conduct by each defendant,
which is particularly important where, as here, so many defendants have been named.
While as to some defendants, there is sufficient information pled as to the nature of the

conduct underlying the claims in a manner that allows a defendant to understand the basis
of Plaintiffs’ theory of liability against him or her and satisfies the requirements of Rule 8
and Rule 12, McCardle-Bracelin v. Congress Hotel, No. 120CV861 (TJM/TWD), 2022
WL 486805, at *7 (N.D.N.Y. Feb. 17, 2022) (holding that “asserting claims against a
group of defendants is appropriate if those defendants allegedly acted in concert to

violate a Plaintiff’s rights” and noting that a “complaint that pleads enough facts to make
claims of such wrongdoing plausible need not then describe each defendant’s particular

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role in detail in order to avoid dismissal on ‘group pleading grounds’”), as to others, the
amended complaint fails.
As noted, in order to establish liability under an Equal Protection theory, a

plaintiff must allege that “the defendant’s indifference was such that the defendant
intended the discrimination to occur,” and in the case of student-on-student harassment,
“deliberate indifference can be found when the defendant’s response to known
discrimination ‘is clearly unreasonable in light of the known circumstances.’” Doe v.
Torrington Bd. of Educ., 179 F. Supp. 3d 179, 193-94 (D. Conn. 2016) (citation and

quotation omitted), on reconsideration in part, No. 3: 15-CV-00452 (MPS), 2016 WL
6821061 (D. Conn. Nov. 17, 2016). Plaintiff has not met this standard with respect to
several defendants.
For example, Plaintiffs’ allegations that Defendant Resto would not let Plaintiff
CS enter a certain door in the building, wrote a negative comment about her parenting on

Facebook, and did not let Plaintiff DS call Plaintiff CS, do not amount to plausible
allegations of racially discriminatory intent against Plaintiffs or demonstrate a clearly
unreasonable deliberate indifference to known discrimination. For these reasons,
Plaintiffs’ § 1983 Equal Protection claim against Defendant Resto is dismissed.
Similarly, Plaintiffs fail to plead direct and personal involvement in any

constitutional deprivation by Defendant Kristoff, General Counsel for the RCSD, with
the requisite plausibility to survive Defendants’ motion. The amended complaint alleges
that Defendant Kristoff attended a meeting regarding bullying of Plaintiff DS and
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accused Plaintiff CS of having a political agenda, but there are no allegations that any of
Defendant Kristoff’s actions were related to racial discrimination or deliberate
indifference to racial harassment. Other than conclusory allegations, Plaintiffs have not

alleged that Defendant Kristoff was directly or personally involved in constitutional
deprivations. Defendants’ motion to dismiss this claim against Defendant Kristoff is
dismissed.
The claim also fails as to Defendant Garlock. The allegations in the amended
complaint relating to Defendant Garlock concern her blocking Plaintiff CS’s access to the

school Facebook page in retaliation for her complaining. There are no allegations that
Defendant Garlock’s actions related in any way to Plaintiffs’ race or constituted
deliberate indifference to race-based harassment. For this reason, this claim is dismissed
as to Defendant Garlock.
Plaintiffs’ allegations against Defendant Boyd are similarly deficient. Defendant

Boyd was the parent liaison at School 58, whose duties included “promoting parent
involvement in school activities and academic endeavors, providing assistance to parents
to enhance their student’s success in school and facilitate intercultural understanding and
respect in the school and community.” (Dkt. 48 at ¶ 266). Plaintiffs allege that
Defendant Boyd was copied in on emails from Plaintiff CS about Plaintiff DS’s treatment

at school, denied Plaintiff CS’s request to meet with the parents of one of Plaintiff DS’s
harassers, and did not permit Plaintiff DS to call home. These allegations against
Defendant Boyd do not demonstrate intentional discriminatory conduct, that Defendant
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Boyd’s indifference rose to the level to establish liability of intentional discrimination, or
that Defendant Boyd’s actions were clearly unreasonable in light of known
circumstances. For these reasons, Plaintiffs’ § 1983 claim against Defendant Boyd is

dismissed.
Likewise, Plaintiffs’ allegations against Defendant Caveny and Defendant McCoy,
teachers at School 58, have not plausibly alleged an Equal Protection claim. The
amended complaint alleges that Defendants Caveny and McCoy made the unfounded
CPS referral in retaliation for Plaintiff CS’s complaints regarding discrimination but there

are no allegations that the actions of these defendants were racially motivated or that they
engaged in conduct that would constitute deliberate indifference to harassment.
Defendants’ motion to dismiss the § 1983 Equal Protection claim against Defendant
Caveny and Defendant McCoy is granted.
While some of the factual allegations underpinning this claim against the

remaining individual defendants are thin, the Court concludes that taking the allegations
as true, the claim survives Defendants’ motion to dismiss as to those defendants.
Accordingly, Defendants’ motion to dismiss Plaintiff’s § 1983 Equal Protection claim is
granted in part and denied in part.
b. Due Process

To state a claim under § 1983 for the denial of procedural due process, a plaintiff
must allege both the existence of a protected property or liberty interest, and that he or
she was deprived of that interest without being afforded sufficient process. A.S, 2022
- 29 -
WL 356697, at *14 (citing Bryant v. New York State Educ. Dep’t, 692 F.3d 202, 218 (2d
Cir. 2012)).
This claim apparently arises from two suspensions Plaintiff DS received while at

School 58. The only allegations in Plaintiffs’ 62-page amended complaint relating to
those suspensions allege in a conclusory manner that Plaintiff DS was suspended without
notice or explanation to her mother. (Dkt. 48 at ¶¶ 312, 333, 388). Plaintiffs have not
alleged any underlying factual information or identified specifically the elements of this
claim or conduct by Defendants separate and apart from her other claims. Because

Plaintiffs have not developed this claim in their amended complaint or devoted any
argument to it in their brief opposing its dismissal,4 the Court presumes Plaintiffs do not
oppose dismissal of this claim. See Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir.
2014) (“[I]n the case of a counseled party, a court may, when appropriate, infer from a
party’s partial opposition that relevant claims or defenses that are not defended have been

abandoned.”); Chen v. Wolf, No. 19-CV-9951 (AJN), 2020 WL 6825681, at *6 (S.D.N.Y.
Nov. 20, 2020) (“This Court may, and generally will, deem a claim abandoned when a
plaintiff fails to respond to a defendant’s arguments that the claim should be dismissed.”

4 The only reference to the claim in Plaintiffs’ entire memorandum is at page 2
wherein Plaintiffs state: “The amended complaint also contains valid claims under 42
USC §1983 against the named individual capacity defendants for racial harassment and
bullying of D.S. in violation of Equal Protection of the Fourteenth Amendment, violation
of the Due Process Clause due to school suspensions without notice and violation of the
First Amendment for retaliation against protected speech.” (Dkt. 54-1 at 2 (emphasis
added)). But no argument or legal support for the claim is contained anywhere in the
brief.
- 30 -
(quoting Lipton v. Cnty. of Orange, NY, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004))).
Accordingly, the portion of Count Three alleging a Due Process Claim is dismissed.
3. Municipal Liability for Failure to Train and Supervise
(Count Four)

Plaintiffs seek to hold Defendants RCSD and BOE 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 BOE failed to comply with DASA, which sets requirements for
bullying prevention.
As an initial matter, to the extent this claim continues to appear 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.”).
But to the extent that the claim arises from a failure to properly train or supervise
employees and the DASA violations are merely provided as evidence of the flaws in
RCSD and BOE policy, on a motion to dismiss, the Court finds the allegations adequate.
“In order for municipal nonfeasance—e.g., the failure to train, to supervise, or to

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discipline—to give rise to Monell liability, the alleged municipal failure must ‘amount[ ]
to deliberate indifference to the rights of [the] person with whom the [municipal
employees] come into contact.” I.S. by & through Disla, 486 F. Supp. 3d at 603. Here,

Plaintiffs have alleged that Plaintiff DS was subjected to repeated race-based harassment
by her peers and that school district employees and supervisors were deliberately
indifferent to the harassment and bullying and took no adequate steps to curtail it. See
A.S., 2022 WL 356697, at *25 (denying motion to dismiss failure to train claim where it
could “be inferred that District policymakers knew school officials would confront

complaints of discrimination and retaliation which it would need to investigate and
resolve, that training would assist school officials in recognizing and resolving such
situations, that improper investigations or handling could violate students’ Equal
Protection or First Amendment rights, and that the District failed to adequately train its
employees, like [defendant], who was unfamiliar with how to handle or investigate

Plaintiff’s complaints of harassment”). For these reasons, Defendants’ motion to dismiss
Plaintiff’s Monell claim against RCSD and BOE arising from a failure to train is denied.
C. State law claim Negligent Supervision/Failure to Keep Safe (Count
Five)

Count Five in Plaintiffs’ amended complaint alleges that Defendants failed to take
appropriate action and were negligent in protecting Plaintiff DS from abuse, which
caused her injury and suffering. They allege that due to the numerous incidents that were
reported, all defendants had specific knowledge of the bullying, harassment, and assaults
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against Plaintiff DS and knew or should have known that the harassment would continue
without intervention. Indeed, “[s]chools 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 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)); see also PC-41 Doe v. Poly Prep Country Day Sch., No. 20CV03628
(DG)(SJB), 2021 WL 4310891, at *12 (E.D.N.Y. Sept. 22, 2021) (“Starting with the duty
element, it is well settled that [i]n New York, schools are under a special duty of in loco

parentis, which obligates them to exercise such care of [their charges] as a parent of
ordinary prudence would observe in comparable circumstances.” (citations and
quotations omitted)).
Plaintiffs have sufficiently pled the elements of such a claim for purposes of a Fed.
R. Civ. P. 12(b)(6) motion. Defendants challenge Plaintiffs’ grouping of defendants as

they did with the Equal Protection claim, though their arguments attacking this claim are
not developed. While the claim could certainly be more artfully plead, all Defendants are
adequately on notice of the nature of the negligence claim being asserted against them
and the standard for negligence requires less than that of a constitutional claim. Powell v.
City of New York, No. 14CV09937PACBCM, 2016 WL 4159897, at *10 (S.D.N.Y. July

14, 2016) (noting that an equal protection claim “require[s] more than negligence”),
report and recommendation adopted, No. 14CIV9937PACBCM, 2016 WL 4147203
(S.D.N.Y. Aug. 3, 2016). Indeed, Defendants seemingly acknowledge as much in their
- 33 -
memorandum of law. (See Dkt. 55 at 3 (“At most, plaintiffs’ claims suggest that the
Individual Defendants were negligent in their supervision of D.S. and her classroom.”)).
Because Defendants have not adequately developed any argument in this regard, and

because the Court otherwise concludes that Count Five has been sufficiently pled,
Defendants’ motion to dismiss Plaintiffs’ negligence claim is denied.
III. Rule 11
Finally, in their motion to dismiss, Defendants indicate that they are also moving
pursuant to Rule 11, though they devote no separate argument to Rule 11. Rule 11

requires an attorney to certify that (1) a pleading “is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of
litigation,” (2) “the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law,” and (3) “the factual contentions have

evidentiary support or, if specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P.
11(b); see also Hardie v. City of Albany, No. 118CV470GLSCFH, 2019 WL 5537610, at
*3 (N.D.N.Y. Oct. 25, 2019) (“A court has authority to sanction a party under Rule 11(c)
if it determines that the party has made false, misleading, improper, or frivolous

representations to the court in violation of Rule 11(b).”).
A motion brought pursuant to Rule 11 must “be made separately from any other
motion and must describe the specific conduct that allegedly violates Rule 11(b).”
- 34 -
Intravaia ex rel. Intravaia v. Rocky Point Union Free Sch. Dist., No. 12-CV-0642 (DRH)
(AKT), 2014 WL 7338849, at *3 (E.D.N.Y. Dec. 22, 2014) (quoting Fed. R. Civ. P. 11(c)
(2)). Rule 11 also requires that “the motion must be served on the offending party

twenty-one days before it is filed with the court.” Rogers v. Henry, No. 16-CV-05271
(KAM)(VMS), 2017 WL 5495805, at *4 (E.D.N.Y. Sept. 12, 2017) (citing Fed. R. Civ.
P. 11(c)(2)). “Any motion seeking Rule 11 sanctions that does not comply with these
provisions must be denied.” Intravaia, 2014 WL 7338849, at *3.
Here, to the extent Defendants intend to seek Rule 11 sanctions, that portion of the

motion is denied because it was not made separately from their motion to dismiss. See
Williamson v. Recovery Ltd. P’ship, 542 F.3d 43, 51 (2d Cir. 2008) (affirming the district
court’s denial of the defendants’ Rule 11 motion where the defendants “failed to make a
separate motion for sanctions under Rule 11, and therefore failed to comply with the
procedural requirements of the rule”); L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 89-

90 (2d Cir. 1998) (reversing the district court’s decision to impose sanctions where the
movant “included its request for sanctions in its letter requesting a Rule 54(b)
certification, thereby failing to give [the non-movant] the separate notice referred to in
Rule 11”); Begonja v. Vornado Realty Tr., 159 F. Supp. 3d 402, 414-15 (S.D.N.Y. 2016)
(“[D]efendants’ request for attorneys’ fees under Rule 11 was made together with the

motion to dismiss rather than as a separate motion, and for that reason alone it must be
denied.”); see also Intravaia, 2014 WL 7338849, at *6 (stating that “service of a separate
motion for sanctions” is necessary to comply with Rule 11’s safe harbor provision (citing
- 35 -
Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170,
175 (2d Cir. 2012))).
In addition, Defendants have failed to demonstrate that they served their motion

for sanctions upon Plaintiffs 21 days before filing it. Indeed, a review of the Court’s
docket reveals that Defendants filed their Rule 11 and Rule 12 motion just three days
after Plaintiffs filed their amended complaint. Accordingly, Defendants could not have
complied with Rule 11’s safe harbor provision. See Hardie, 2019 WL 5537610, at *3
(“Further, the motion must first be served upon the offending party, who is then given 21

days to remedy the sanctionable conduct before the motion may be made to the court.”
(quoting Finnan v. Ryan, No. 8:08-CV-259, 2008 WL 4891162, at *7 (N.D.N.Y. Nov. 7,
2008))); Rogers, 2017 WL 5495805, at *4 (“Because ‘[c]ompliance with Rule 11’s safe
harbor provision is mandatory . . . failure to do so will result in a denial of the sanctions
motion.’” (quoting Libaire v. Kaplan, No. CIV.A. 06-1500, 2008 WL 794973, at *12

(E.D.N.Y. Mar. 24, 2008))); Castro v. Mitchell, 727 F. Supp. 2d 302, 306 (S.D.N.Y.
2010) (“A motion that fails to comply with the safe harbor provision of Rule 11 must be
denied.”).
Therefore, the Court declines to consider Defendants’ request for Rule 11
sanctions, because Defendants failed to comply with Rule 11’s procedural requirements

in moving for sanctions against Plaintiffs. McLeod v. Verizon N.Y., Inc., 995 F. Supp. 2d
134, 145 (E.D.N.Y. 2014); Banfield v. UHS Home Attendants, Inc., No. 96 CIV. 4850
(JFK), 1997 WL 342422, at *3 (S.D.N.Y. June 23, 1997).
- 36 -
In sum and for the foregoing reasons, Defendants’ motion to dismiss is denied in
part and granted in part.
CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is granted in part and
denied in part. Plaintiffs’ § 1983 claims against the individual defendants in their official
capacity are dismissed; the claim for First Amendment retaliation against Defendant
Resto is dismissed; the portion of Count Three for Equal Protection violations against
Defendants Resto, Kristoff, Garlock, Boyd, Caveny, and McCoy are dismissed; and the

portion of Count Three for violations of Due Process are dismissed against all defendants.
The portion of Defendants’ motion seeking relief pursuant to Rule 11 is denied.
Plaintiffs’ remaining claims may proceed.
SO ORDERED.

ELIZABETH A. WOLFORD
Chief Judge
United States District Court

Dated: March 7, 2022
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364685. Public record. Not legal advice.