# SB v. Wayne County

> District Court, W.D. New York · February 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10364782

## Case

- **Court:** District Court, W.D. New York
- **Decided:** February 23, 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/10364782

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SB, on behalf of his infant child, AB,

Plaintiffs, DECISION AND ORDER

v. 6:21-CV-06138 EAW

NEWARK CENTRAL SCHOOL
DISTRICT, NEWARK CENTRAL
SCHOOL DISTRICT BOARD OF
EDUCATION, MATTHEW HOLLAND,
individually and in his official capacity,
MATTHEW COOK, individually and in his
official capacity, THOMAS ROOTE,
individually and in his official capacity,
ROBYN ROSS, individually and in her
official capacity, and SCOTT DIAMOND,
individually and in his official capacity,

Defendants.

INTRODUCTION
Plaintiff SB (“Plaintiff SB”), on behalf of his minor child, plaintiff AB (“Plaintiff
AB”) (collectively “Plaintiffs”),1 commenced this action asserting claims against

1 In the amended complaint, Plaintiffs request that Plaintiff SB and Plaintiff AB be
permitted to proceed anonymously. (Dkt. 18 at 1 n.1). While Plaintiff AB is automatically
entitled to proceed through only the use of her initials pursuant to Rule 5.2(a)(3) of the
Federal Rules of Civil Procedure, Plaintiff SB must file a motion to do so—dropping a
footnote in the amended complaint is not the proper means by which to seek this relief. By
no later than March 22, 2022, Plaintiff SB must file a procedurally-compliant motion to
proceed anonymously in order to be granted this relief. See Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 189-90 (2d Cir. 2008); 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
defendants Newark Central School District (“NCSD”), Newark Central School District
Board of Education (“BOE”), Matthew Holland (“Defendant Holland”), Matthew Cook
(“Defendant Cook”), Thomas Roote (“Defendant Roote”), Robyn Ross (“Defendant

Ross”), and Scott Diamond (“Defendant Diamond”). (Dkt. 18). Presently before the Court
is a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by NCSD,
BOE, Defendant Cook, Defendant Roote, Defendant Ross, and Defendant Diamond
(collectively “Moving Defendants”). (Dkt. 32). For the reasons that follow, Moving
Defendants’ motion is granted in part and denied in part.

BACKGROUND
The following facts are taken from Plaintiffs’ amended complaint. (Dkt. 18).
Plaintiff SB is the father of Plaintiff AB, a minor female who attends Newark High
School in the NCSD, where Defendant Holland was employed as a teaching assistant. (Id.
at ¶¶ 1, 2, 9, 17). Defendant Cook was the Superintendent of NCSD who was responsible

for administering all policies and enforcing the rules and regulations of the BOE. (Id. at
¶¶ 23, 25). Defendant Roote was the principal of Newark High School. (Id. at ¶ 30).
In 2017, Defendant Holland pretended to be a 14-year-old boy on the social media
messaging platform, “Snapchat,” and encouraged Plaintiff AB, who was a minor, to send
him photographs that were “pornographic in nature.” (Id. at ¶ 57). When Plaintiff AB

refused, Defendant Holland threatened her by stating that he knew where she lived. (Id. at

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)).
¶ 58). Ultimately, Plaintiff AB relented and sent Defendant Holland “a photo.” (Id.).
Defendant Holland then further blackmailed Plaintiff AB and threatened to disseminate the
photo on the internet if she did not send him more photos. (Id. at ¶ 59). Defendant Holland

continued to contact Plaintiff AB on Snapchat, using multiple pseudonyms. (Id. at ¶ 60).
Plaintiff AB did not become aware that the various individuals contacting her and harassing
her on Snapchat were actually Defendant Holland until law enforcement contacted her
family in June of 2020. (Id. at ¶ 61).
On July 15, 2020, a criminal complaint was filed against Defendant Holland. (Id.

at ¶ 62). On March 12, 2021, Defendant Holland pleaded guilty to possession of child
pornography, including images he obtained from minors over social media. (Id. at ¶ 65).
Defendant Holland also pleaded guilty to surreptitiously recording minors in bathrooms of
homes and in his photography studio. (Id. at ¶¶ 66-69).
Plaintiffs allege that Defendants Cook, Roote, Ross, NCSD, and the BOE “had

actual notice of Defendant Holland’s criminal and abnormal behaviors throughout his
employment at [NCSD] but continuously ignored the warnings and failed to conduct any
proper investigation into the situation.” (Id. at ¶ 72). Plaintiffs allege several examples of
abnormal or inappropriate conduct by Defendant Holland that they allege provided Moving
Defendants with notice of his propensities.

Plaintiffs allege that in October of 2014, Defendant Holland received a counseling
memo from the Secondary Principal at Newark High School regarding inappropriate
conversations and conduct Defendant Holland had with students. (Id. at ¶ 73). Despite
having knowledge of Defendant Holland’s inappropriate behavior with students,
Defendants Cook, Roote, Ross, NCSD, and BOE failed to appropriately supervise
Defendant Holland. (Id. ¶ 74).
Plaintiffs also allege that at some point in 2018, Plaintiff AB and a friend were

talking during a recorded conversation at the broadcasting club about Defendant Holland,
describing him as creepy and noting that something was off with his behavior. (Id. at ¶ 75).
Defendant Diamond, the broadcast TV/social media coordinator for NCSD, told Defendant
Holland about the conversation between Plaintiff AB and her friend. (Id. at ¶ 78).
Defendant Diamond then confronted Plaintiff AB about the recording while Defendant

Holland was in the room. (Id.). In Defendant Holland’s presence, Plaintiff AB denied that
was how she felt about him and Defendant Diamond deleted the recorded conversation.
(Id. at ¶¶ 79, 80). Although Plaintiff AB subsequently further discussed with Defendant
Diamond the recording and her complaints about Defendant Holland, Defendant Diamond
did not report Plaintiff AB’s complaints to any authorities. (Id. at ¶ 81).

In the spring of 2018, a concerned staff member who witnessed Defendant
Holland’s inappropriate behaviors reported it to Defendant Ross, the Assistant Principal.
(Id. at ¶ 89). Defendant Ross downplayed the complaint and suggested that the female
students liked to be around Defendant Holland because he is attractive. (Id. at ¶¶ 89, 90).
Plaintiffs allege upon information and belief that Defendant Ross then went to the President

of the Teachers’ Union and told the President to back off Defendant Holland. (Id. at ¶ 91).
Defendant Ross failed to report the complaint about Defendant Holland to anyone or to
adequately supervise him. (Id. at ¶¶ 92, 93).
In October 2019, Defendant Holland called Plaintiff AB to a private room at Newark
High School to confront her about his belief that she had negatively impacted a job
interview he had, which resulted in him not getting the job he sought. (Id. at ¶ 82). When

two teaching assistants entered the room and found Defendant Holland alone in the private
room with Plaintiff AB, they reported the incident. (Id. at ¶ 84). Defendant Holland only
received a reprimand letter for “unprofessional behavior” for this incident. (Id. at ¶ 85).
Defendant Holland resigned sometime in October 2019. (Id. at ¶ 87).
Despite having complaints from its own staff members regarding Defendant

Holland’s unusual behaviors, NCSD and BOE failed to conduct adequate investigations.
(Id. at ¶ 100). Plaintiff AB suffers from nighttime terrors as a result of her traumatic
experiences and continues to receive counseling services. (Id. at ¶ 106).
Plaintiffs assert claims against Defendant Holland pursuant to 18 U.S.C. § 2255,
known as Masha’s Law (Count I), and a state law claim for assault (Count X). Plaintiffs

assert claims against NCSD and BOE for violations of Title IX, 20 U.S.C. § 1681(a) (Count
II), 42 U.S.C. § 1983 (Count III), and state law claims for negligent hiring/retention (Count
IV), negligent supervision (Count V), and intentional misrepresentation (Count IX).
Plaintiffs bring a claim against all Defendants for negligence/gross negligence (Count VI),
intentional infliction of emotional distress (Count VII), and negligent infliction of

emotional distress (Count VIII). Plaintiffs seek compensatory and punitive damages,
attorneys’ fees, costs, and interest as damages. (Id. at 33-34).
PROCEDURAL HISTORY
On February 8, 2021, Plaintiffs filed the instant action. (Dkt. 1). On March 26,
2021, Moving Defendants filed a motion to dismiss for failure to state a claim. (Dkt. 16).

Plaintiffs amended their complaint as of right on April 16, 2021. (Dkt. 18). On April 27,
2021, the Court exercised its discretion to deny the motion to dismiss as moot and directed
Moving Defendants to answer or otherwise respond to the amended complaint within 14
days of service thereof. (Dkt. 23). On May 5, 2021, Plaintiffs sought Clerk’s Entry of
Default against Moving Defendants. (Dkt. 26; Dkt. 27; Dkt. 28; Dkt. 29; Dkt. 30). No

Entries of Default were entered by the Clerk because Plaintiffs failed to file any proof of
service for the amended complaint with their requests.
On May 6, 2021, Moving Defendants answered the complaint. (Dkt. 31).2 On the
same day, Moving Defendants filed the instant motion to dismiss. (Dkt. 32).3 On May 28,

2 In their motion, Moving Defendants also seek permission to file their answer late,
as well as vacatur of any default pursuant to Rule 55(c) of the Federal Rules of Civil
Procedure. (Dkt. 32-1 at 1). Because Plaintiffs never provided proof of service in support
of their requests for entry of default and do not oppose this request for relief (Dkt. 35-2 at
7 n.1), the Court need not address whether excusable neglect has been demonstrated and
allows the late filing of Moving Defendants’ answer.

3 Because Moving Defendants filed an answer to Plaintiff’s amended complaint, they
arguably should have moved for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). However, given that the standards for assessing a motion pursuant
to Rules 12(b)(6) and 12(c) are the same, see Aboushama v. EMF Corp., 214 F. Supp. 3d
202, 205 (W.D.N.Y. 2016) (“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.’” (quoting Mantena v. Johnson,
809 F.3d 721, 727-28 (2d Cir. 2015))), the Court can treat the motion to dismiss as a motion
for judgment on the pleadings, see, e.g., Pare v. Valet Park of Am., No. 119CV0206
(LEK/DJS), 2021 WL 5564681, at *1 (N.D.N.Y. Nov. 29, 2021) (“The motion has been
2021, Plaintiffs filed their opposition to the motion (Dkt. 35) and on June 4, 2021, Moving
Defendants filed their reply (Dkt. 36).
DISCUSSION

I. Legal Standards
As noted above, Moving Defendants seek dismissal of this action under both Rule
12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim.
A. Rule 12(b)(1)
“Subject matter jurisdiction is a threshold question that must be resolved before

proceeding to the merits.” United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)
(quotation and alteration omitted). “A district court properly dismisses an action under
Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court lacks the statutory
or constitutional power to adjudicate it. . . .” Cortlandt St. Recovery Corp. v. Hellas
Telecomms., S.á.r.l, 790 F.3d 411, 416-17 (2d Cir. 2015) (quotation and citation omitted).

“A plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). “When considering a motion to dismiss for lack of subject matter

styled as a motion to dismiss, however, since Defendant has already filed his answer, the
Court will construe it as a motion for judgment on the pleadings pursuant to Rule 12(c).”);
Coppelson v. Serhant, No. 19-CV-8481 (LJL), 2021 WL 148088, at *3 (S.D.N.Y. Jan. 15,
2021) (holding that there is some authority to permit a motion to dismiss filed after an
answer if the answer preserves the defense, “[i]n any event, even if Rule 12(b)(6) were
technically not available, the Court would consider the motion pursuant to Federal Rule of
Civil Procedure 12(c), which employs the same standards as Rule 12(b)(6)[.]”); Gindi v.
Silvershein, Nos. 93 Civ. 8679 (LLS), 93 Civ. 8680 (LLS), 1995 WL 347397, at *1 n.1
(S.D.N.Y. June 8, 1995) (collecting cases).
jurisdiction . . . a court must accept as true all material factual allegations in the complaint.”
Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); see also Tandon
v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (“In

resolving a motion to dismiss under Rule 12(b)(1), the district court must take all
uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in
favor of the party asserting jurisdiction.”).
Where, as here, a party challenges the existence of federal question jurisdiction, the
test is not whether a plaintiff can recover on the cause of action asserted but “[i]nstead, the

test is whether ‘the cause of action alleged is so patently without merit as to justify . . . the
court’s dismissal for want of jurisdiction.’” Town of W. Hartford v. Operation Rescue, 915
F.2d 92, 100 (2d Cir. 1990) (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc.,
438 U.S. 59, 70-71 (1978)); Williams v. Long Beach Mortg. Co., No. 15-CV-5952 (KMK),
2016 WL 5720810, at *5 (S.D.N.Y. Sept. 30, 2016) (“Where a complaint raises claims

arising under federal law, the inadequacy of the federal claim is ground for dismissal for
lack of subject-matter jurisdiction only when the claim is so insubstantial, implausible,
foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of
merit as not to involve a federal controversy.” (quotation, alteration, and citation omitted)),
aff’d, 709 F. App’x 92 (2d Cir. 2018). “The Supreme Court and the Second Circuit have

also emphasized the importance of distinguishing this standard from the one employed
under Rule 12(b)(6).” Paushok v. Ganbold, No. 20 CIV. 4769 (JPC), 2021 WL 1063206,
at *5 (S.D.N.Y. Mar. 18, 2021) (citing Shapiro v. McManus, 577 U.S. 39, 45 (2015) (“We
have long distinguished between failing to raise a substantial federal question for
jurisdictional purposes . . . and failing to state a claim for relief on the merits; only ‘wholly
insubstantial and frivolous’ claims implicate the former.” (quotation omitted))).
B. Rule 12(b)(6)

“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 [pleading], documents
attached to the [pleading] as exhibits, and documents incorporated by reference in the
[pleading].” 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 [claimant].” Trs. of Upstate N.Y. Eng’rs Pension
Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). 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 [claimant] pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the 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 [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a [claimant]’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 [pleading]’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. Moving Defendants’ Motion to Dismiss

Moving Defendants first argue that federal jurisdiction has not been properly
invoked because Plaintiffs’ first claim arising under 18 U.S.C. § 2255 fails to allege a
predicate act.4 Moving Defendants further contend that the allegations set forth in the
remaining claims in Plaintiffs’ amended complaint are insufficiently pled and do not
support the claims alleged, subjecting the amended complaint to dismissal in its entirety.

The Court disagrees.
A. Masha’s Law
Moving Defendants first argue that Plaintiffs’ invocation of federal jurisdiction
pursuant to Masha’s Law is flawed because Plaintiffs fail to allege a key element of this
statute. This statute, enacted in connection with The Child Abuse Victims’ Rights Act of

1986, “provide[s] a civil remedy for personal injuries suffered by victims of child sexual
exploitation.” Doe v. AR, No. 21-CV-06353-FPG, 2021 WL 5416235, at *6 (W.D.N.Y.
Nov. 19, 2021); St. Louis v. Perlitz, 176 F. Supp. 3d 97, 99 (D. Conn. 2016) (“The
legislative history of Masha’s Law shows that it was intended to provide a cause of action
for victims of Internet distribution of child pornography. Congress has recognized that

4 Although the amended complaint only specifically identifies 18 U.S.C. § 2255 as
the basis for federal jurisdiction, (Dkt. 18 at ¶ 6), Claim II and Claim III also arise pursuant
to federal law, and accordingly would independently provide a basis for invoking this
Court’s jurisdiction. Moving Defendants’ motion does not appear to challenge Claims II
and III pursuant to Rule 12(b)(1), but only pursuant to Rule 12(b)(6).
distribution of child pornography on the Internet inflicts an injury on the minor victims
depicted in the pornographic material.”). It provides in relevant part:
Any person who, while a minor, was a victim of a violation of section 1589,
1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421,
2422, or 2423 of this title and who suffers personal injury as a result of such
violation, regardless of whether the injury occurred while such person was a
minor, may sue in any appropriate United States District Court and shall
recover the actual damages such person sustains or liquidated damages in the
amount of $150,000, and the cost of the action, including reasonable
attorney’s fees and other litigation costs reasonably incurred. The court may
also award punitive damages and such other preliminary and equitable relief
as the court determines to be appropriate.

18 U.S.C. § 2255(a).
Moving Defendants argue that this Court lacks subject matter jurisdiction because
Masha’s Law requires distribution of child pornography over the internet and/or interstate
dissemination and “[t]here is no allegation that Matt Holland shipped or intended to ship
the photos or that he made such materials available on the internet or that any interaction
occurred outside of the State of New York involving a Federal interest.” (Dkt. 32-1 at 8).
This argument is meritless.
As noted, “[d]ismissal for lack of subject-matter jurisdiction because of the
inadequacy of the federal claim is proper only when the claim is so insubstantial,
implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of
merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 89 (1998). Here, Plaintiffs have alleged a federal claim pursuant to Masha’s Law,
a statute intended to provide broad relief for victims of child pornography. N.S. v. Rockett,
No. 3:16-CV-2171-AC, 2018 WL 6920125, at *6 (D. Or. Oct. 19, 2018) (“[T]he legislative
purpose and development of Masha’s Law and its precursors support that Congress
intended for civil recovery under § 2255 to be expansive and inclusive, to protect victims
of child sexual exploitation.”), report and recommendation adopted, No. 3:16-CV-2171-

AC, 2018 WL 6920112 (D. Or. Nov. 28, 2018); see also United States v. Clarke, 979 F.3d
82, 93 (2d Cir. 2020) (“The use of the Internet to move video files from [Defendant’s]
computer to the government agents’ computer constituted transportation using a means or
facility of interstate commerce within the meaning of § 2252(a)(1).”). In their amended
complaint, Plaintiffs allege that Defendant Holland coerced Plaintiff AB to provide

sexually explicit photographs over Snapchat and pleaded guilty to crimes related to that
conduct, which is sufficient for purposes of invoking federal jurisdiction. The Court
accordingly denies Moving Defendants’ motion brought pursuant to Rule 12(b)(1) and
finds that Plaintiffs have pled an adequate basis for federal jurisdiction.
B. Liability of Individual Defendants

Moving Defendants broadly argue that the amended complaint does not satisfy the
requirements of Rule 8 and give each individual defendant fair notice of the basis of the
claims asserted against him or her. They contend that Plaintiffs have lumped all defendants
together without providing a factual basis for each of their conduct. See Komatsu v. City
of New York, No. 22-CV-0424 (LTS), 2022 WL 294393, at *3 (S.D.N.Y. Feb. 1, 2022)

(“Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and
plain statement showing that the pleader is entitled to relief.”).
A review of the amended complaint demonstrates that Plaintiffs have identified
specific conduct by each named defendant and makes clear the basis of Plaintiffs’ theory
of liability against each of them. Plaintiffs also specifically allege that upon information
and belief, each one of the individual defendants had actual notice of Defendant Holland’s
criminal and inappropriate behaviors throughout his employment. While Moving

Defendants may dispute the substantive merits of the allegations, the amended complaint
sufficiently explains how the alleged violations harmed Plaintiffs and satisfies the
requirements of Rule 8. 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 role in detail in order to avoid dismissal on ‘group pleading grounds.’”).
Accordingly, Moving Defendants’ motion to dismiss the claims asserted against the
individual defendants on this basis is denied.

C. Title IX
Plaintiffs allege a claim for violation of Title IX against Defendants NCSD and
BOE.5 Title IX provides, in relevant part, that “[n]o person in the United States shall, on
the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected

5 Although Moving Defendants correctly argue that a claim for Title IX cannot be
successfully asserted against individual faculty members or other employees, see, e.g.,
Sutton v. Stony Brook Univ., No. 18-CV-7434(JS)(ARL), 2021 WL 3667013, at *5
(E.D.N.Y. Aug. 18, 2021) (confirming that “individuals cannot be held liable under Title
IX” and “[t]herefore, the Court does not consider Title IX claims against the individual
Defendants”), the Title IX claim has not been asserted against any of the individual
defendants (Dkt. 18 at Count II).
to discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Sexual harassment is considered prohibited
discrimination pursuant to Title IX. See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

649-50 (1999). “If a school receives federal funding, as virtually every public school does,
a student who is subjected to sexual harassment by a teacher has a private right of action
against the school and may recover monetary damages under Title IX.” RF v. S. Country
Cent. Sch. Dist., No. 13CV2710 (SJF)(AKT), 2016 WL 5349782, at *8 (E.D.N.Y. Sept.
23, 2016); Doe v. Patrick, 437 F. Supp. 3d 160, 180-81 (N.D.N.Y. 2020) (noting that

liability against a school may be pursued under Title IX where one of its teachers engages
in the harassment of a student); Roe v. Chappaqua Cent. Sch. Dist., No. 16 CV 7099 (VB),
2017 WL 4119655, at *8 (S.D.N.Y. Sept. 15, 2017) (“A school district may be liable for
damages under Title IX if it is deliberately indifferent to knowledge of a teacher’s prior
sexual harassment or abuse of students.”).

A school is subject to liability under Title IX if it is deliberately indifferent to sexual
harassment of a student, of which the school possessed actual knowledge, and the
harassment is so severe and objectively offensive that it deprives the student of the
educational opportunities offered by the school. Patrick, 437 F. Supp. 3d at 180-81. To
constitute deliberate indifference, the school’s conduct must be clearly unreasonable.

Castro v. Yale Univ., 518 F. Supp. 3d 593, 609 (D. Conn. 2021) (“Plaintiffs suing under
Title IX must also demonstrate that the educational program or activity was deliberately
indifferent to the alleged discrimination, meaning that a school official with authority to
address the alleged discrimination and to institute corrective measures had actual
knowledge of the discrimination and failed to adequately respond.” (quotation and citation
omitted)); Posso v. Niagara Univ., 518 F. Supp. 3d 688, 697 (W.D.N.Y. 2021) (“A
defendant acts with deliberate indifference for Title IX purposes ‘when the defendant’s

response to known discrimination is clearly unreasonable in light of the known
circumstances.’” (quoting Roskin-Frazee v. Columbia Univ., 17 Civ. 2032 (GBD), 2018
WL 6523721, at *4 (S.D.N.Y. Nov. 26, 2018)). Actual knowledge of the discrimination
“does not set the bar so high that a school district is not put on notice until it receives a
clearly credible report of sexual abuse from the plaintiff-student.” Tesoriero v. Syosset

Cent. Sch. Dist., 382 F. Supp. 2d 387, 397 (E.D.N.Y. 2005) (quotation and citation
omitted); see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998)) (noting
that “it would ‘frustrate the purposes’ of Title IX to permit a damages recovery against a
school district for a teacher’s sexual harassment of a student based on principles of
respondeat superior or constructive notice, i.e., without actual notice to a school district

official”). Instead, “[m]ost federal courts appear to agree that the ‘actual knowledge’ need
only be of facts indicating that the teacher has the potential to abuse a student.” Tesoriero,
382 F. Supp. 2d at 397 (citing Doe A. v. Green, 298 F. Supp. 2d 1025, 1034 n.2 (D. Nev.
2004)).
“Relying on Gebser, courts have found that discrepancies between the conduct that

allegedly put the administration on notice and the conduct ultimately at issue in the
litigation must be sufficiently similar to find liability.” S. Country Cent. Sch. Dist., No.
2016 WL 5349782, at *9 (quotation and citation omitted). The question of “[w]hether
complaints unsubstantiated by corroborating evidence and denied by the allegedly
offending teacher did or should have put a school district on notice of a teacher’s substantial
risk to students is usually a question for the jury.” Doe by & through Doe v. E. Irondequoit
Cent. Sch. Dist., No. 16-CV-6594 (CJS), 2018 WL 2100605, at *22 (W.D.N.Y. May 7,

2018) (quotation and citation omitted).
Moving Defendants argue that Plaintiffs failed to allege a factual basis to establish
actual knowledge by any school official sufficient to sustain a Title IX claim. They contend
that the only allegations establishing actual notice arose when Defendant Holland was
arrested and well after he had already solicited sexually explicit photographs from Plaintiff

AB. In other words, Moving Defendants frame the question narrowly and urge the Court
to conclude that there was no way for Moving Defendants to know that Defendant Holland
would harass Plaintiff AB and request that she send him sexually explicit photographs.
Taking the allegations of the amended complaint as true, the Court disagrees.
Plaintiffs have alleged that Defendant Holland engaged in a pattern of inappropriate

behavior around students beginning as early as 2014. They contend that Moving
Defendants were aware of Defendant Holland’s propensity to demonstrate poor judgment
and engage in inappropriate conduct and did not take adequate measures to supervise him
or ensure the safety of students. Plaintiffs have plausibly alleged facts which, if taken as
true, would establish that NCSD and BOE were deliberately indifferent to the sexual

harassment of students, possessed actual knowledge that Defendant Holland engaged in
inappropriate behavior with students, and that his harassment of Plaintiff AB was pervasive
and objectively offensive. Consequently, the Court denies Moving Defendants’ motion to
dismiss this claim. See Roe, 2017 WL 4119655, at *8 (denying motion to dismiss Title IX
claim against school district where plaintiff alleged there was actual notice of abuse of
students and that the district failed to develop and follow an appropriate policy to train
students and staff about identifying and reporting inappropriate behavior by teachers).

D. 42 U.S.C. § 1983
Plaintiffs assert Claim III pursuant to 42 U.S.C. § 1983, which provides a cause of
action against individuals who, acting under color of state law, deprive an individual of
rights, privileges, or immunities secured by the Constitution. “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)).
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 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. E. Irondequoit Cent. Sch. Dist., 2018 WL 2100605, at *16.
“To establish municipal liability under § 1983, a plaintiff must do more than simply
state that a municipal policy or custom exists. Rather, a plaintiff must allege facts tending
to support, at least circumstantially, an inference that such a municipal policy or custom

exists.” Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (citation
omitted). “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.’” Hurdle v. Bd.

of Educ. of City of New York, 113 F. App’x 423, 424-25 (2d Cir. 2004) (citation omitted);
see also Dole v. Huntington Union Free Sch. Dist., 699 F. App’x 85, 87 (2d 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)). “In
limited circumstances, a [municipal entity’s] decision not to train certain employees about
their legal duty to avoid violating citizens’ rights may rise to the level of an official
government policy for purposes of § 1983.” S. Country Cent. Sch. Dist., 2016 WL
5349782, at *11 (quoting Connick, 563 U.S. at 61).

Here, Plaintiffs contend that NCSD and BOE violated Plaintiff AB’s constitutional
rights under the Equal Protection Clause of the Fourteenth Amendment “to an educational
environment free of sexual harassment.” Bliss v. Putnam Valley Cent. Sch. Dist., No. 7:06-
CV-15509, 2011 WL 1079944, at *8 (S.D.N.Y. March 24, 2011). They allege that the
school district engaged in an official policy or tolerance of a custom that resulted in the
deprivation of Plaintiff AB’s rights by having actual notice of Defendant Holland’s
propensity for inappropriate and unlawful conduct with female students and tolerating the

repeated red flags alerting them of that conduct. The Court concludes that Plaintiffs have
adequately alleged a plausible § 1983 claim sufficient to withstand Moving Defendants’
Rule 12(b)(6) motion. See Roe, 2017 WL 4119655, at *8 (denying motion to dismiss
§ 1983 claim against school district where plaintiff alleged that teacher’s “inappropriate
conduct with students should have prompted a thorough investigation into [the teacher’s]

misconduct” and that school district defendants were on notice of prior abuse allegations
and due to “numerous other warnings of inappropriate conduct by [the teacher] that should
have prompted an investigation”). Accordingly, the motion to dismiss the § 1983 claim is
denied.
E. Negligence, Negligent Hiring/Retention, and Negligent Supervision

In Counts IV, V, and VI, Plaintiffs assert claims for negligent hiring/retention,
negligent supervision, and negligence.
“To establish a prima facie case of negligence under New York law, ‘a plaintiff
must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof,
and (3) injury proximately resulting therefrom.’” Crout v. Haverfield Int’l, Inc., 269 F.

Supp. 3d 90, 96 (W.D.N.Y. 2017) (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286
(2d Cir. 2006)). In addition, “to state a claim for negligent supervision, hiring, training or
retention of employees, a plaintiff must allege, in addition to the usual elements of
negligence, that the defendant employer ‘knew of [an] employee’s propensity to commit
the alleged acts or that defendant should have known of such propensity had it conducted
an adequate hiring procedure.’” AA by BB v. Hammondsport Cent. Sch. Dist., 527 F. Supp.
3d 501, 508 (W.D.N.Y. 2021) (quoting N.U. v. East Islip Union Free Sch. Dist., 2017 WL

10456860 at *16 (E.D.N.Y. 2017)). Also, the employee’s actions must have been outside
the scope of employment. Id.
Liability for negligence against Moving Defendants may not arise solely under a
theory of vicarious liability for the actions of Defendant Holland, which is inapplicable, as
here, where an employee clearly acted outside of the scope of his employment and his

actions were entirely motivated by personal reasons. See Rich v. Fox News Network, LLC,
939 F.3d 112, 129-130 (2d Cir. 2019) (“[t]he employee also must not be acting within the
scope of his or her employment . . . [otherwise] the employer [would] only be liable . . .
vicariously under the theory of respondeat superior, [and] not for negligent supervision or
retention”); R.A. v. State, 73 Misc. 3d 1235(A), 2021 WL 6276207, at *5-6 (Ct. Cl. 2021)

(“Turning to the negligence claims asserted in the proposed claim, although the State may
not be held vicariously liable for a sexual assault perpetrated by its employee, it may be
held liable under the theories of negligent supervision and retention, as alleged here in the
proposed claim.”).
Here, the gravamen of the negligence claims against Moving Defendants arises from

Plaintiffs’ contention that Moving Defendants owed a duty of care to Plaintiff, as a minor
student at Newark High School, to ensure that students were adequately supervised. See
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 allege that Moving Defendants breached that duty by not protecting Plaintiff AB
from Defendant Holland’s harassment, and that Moving Defendants knew or should have
known of the propensity of Defendant Holland to engage in inappropriate behaviors and
abuse. Plaintiffs specifically allege that Moving Defendants had actual notice of Defendant
Holland’s propensities and the alleged harassment by Defendant Holland was clearly

conducted outside the scope of his employment. Finally, Plaintiff AB alleges severe
emotional and physical harm arising from the abuse. Taking the allegations in Plaintiffs’
amended complaint as true, as it must, the Court concludes that the claims for negligence,
negligent hiring/retention, and negligent supervision have been adequately pled.
F. Intentional Infliction of Emotional Distress

Count VII of Plaintiffs’ amended complaint alleges a claim against all defendants
for intentional infliction of emotional distress.
“To state a claim for intentional infliction of emotional distress, [plaintiff] must
establish: ‘(1) that the actor intended to inflict emotional distress or that he knew of should
have known that emotional distress was the likely result of his conduct; (2) that the conduct

was extreme and outrageous; (3) that the defendant’s conduct was the cause of the
plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was
severe.’” Pagan v. Colon, No. 3:22-CV-00001 (KAD), 2022 WL 475176, at *8 (D. Conn.
Feb. 16, 2022). The standard for pleading a claim for intentional infliction of emotional
distress is “very strict” and liability will only stand for “conduct ‘so outrageous in character
and so extreme in degree as to go beyond all possible bounds of decency and to be regarded
as atrocious, and utterly intolerable in a civilized community.’” Peterson v. New York City

Dep’t of Educ., No. 18-CV-1515 (ILG), 2020 WL 2559835, at *10 (E.D.N.Y. May 20,
2020) (citation and quotation omitted).
Here, not only have Plaintiffs failed to allege conduct so extreme and outrageous to
go beyond all bounds of decency by Moving Defendants, but also absent from the amended
complaint are allegations that Moving Defendants acted with the intention to inflict

emotional distress on Plaintiff AB. While Defendant Holland’s alleged conduct is
atrocious and transcends all bounds of decency, the same cannot be said for any alleged
conduct of the Moving Defendants. See Gray v. Schenectady City Sch. Dist., 86 A.D.3d
771, 773 (3d Dep’t 2011) (“Despite this sufficient claim against Raucci, defendant’s mere
inaction after receiving complaints about Raucci’s behavior—which allegedly allowed him

to continue to engage in this behavior in spite of the notice regarding his actions—cannot
be considered the type of extreme and outrageous conduct that is ‘utterly intolerable in a
civilized community’” (quotation and citation omitted)). Even taking the allegations
against Moving Defendants as true, Plaintiffs have not plausibly alleged that Moving
Defendants intentionally inflicted emotional distress upon Plaintiffs. For these reasons, the

Court will grant Moving Defendants’ motion to dismiss Plaintiffs’ claim for intentional
infliction of emotional distress.
G. Negligent Infliction of Emotional Distress
Plaintiffs’ cause of action for negligent infliction of emotional distress requires them
“to show a breach of duty owed to [him or] her which unreasonably endangered [his or]

her physical safety, or caused [him or] her to fear for [his or] her own safety.” A.M.P. v.
Benjamin, 201 A.D.3d 50, 2021 WL 5496954, at *3 (3d Dep’t 2021) (citation and quotation
omitted). But “[u]nder New York law, claims are duplicative when both ‘arise from the
same facts and seek the identical damages for each alleged breach.’” C.Q. v. Est. of
Rockefeller, No. 20-CV-2205 (VSB), 2021 WL 4942802, at *4 (S.D.N.Y. Oct. 21, 2021)

(quoting Deutsche Bank Nat’l Tr. Co. v. Quicken Loans Inc., 810 F.3d 861, 869 (2d Cir.
2015)). In similar cases, courts have concluded that claims for negligent infliction of
emotional distress are duplicative of other negligence-based claims and dismissed the
negligent infliction of emotional distress claims. See Watkins v. Harlem Ctr. for Nursing
& Rehab., LLC, No. 20 CIV. 2919 (KPF), 2021 WL 4443968, at *14 (S.D.N.Y. Sept. 28,

2021) (“Here, Plaintiffs’ claim for negligent infliction of emotional distress must be
dismissed because it is duplicative of their claim for negligence. Fatally, both claims rest
on the same facts and seek the same damages.”); PC-41 Doe, 2021 WL 4310891, at *15
(“And in similar [Child Victim Act] actions, both NIED and premises liability claims have
been dismissed as duplicative of other tort claims.” (collecting cases)); Fay v. Troy City

Sch. Dist., 197 A.D.3d 1423, 151 N.Y.S.3d 642, 643 (3d Dep’t 2021) (“The conduct
complained of in the causes of action for premises liability and negligent infliction of
emotional distress falls entirely within the scope of plaintiff’s separate causes of action for
negligence, negligent supervision and negligent retention. Thus, the premises liability and
negligent infliction of emotional distress claims must be dismissed as duplicative of the
negligence, negligent supervision and negligent retention claims.” (quotation and citation
omitted)); AA by BB, 527 F. Supp. 3d at 510 (“A claim for negligent infliction of emotional

distress cannot be asserted if it is ‘essentially duplicative of tort . . . causes of action.”
(quotation and citation omitted)). So too, here, is Plaintiffs’ claim for negligent infliction
of emotional distress subject to dismissal. Moving Defendants’ motion to dismiss this
claim is therefore granted.
H. Intentional Misrepresentation (Count IX)

In Count IX, Plaintiffs contends that Defendants NCSD and BOE are liable for
intentional misrepresentations. Specifically, they allege that NCSD and BOE
“affirmatively represented to AB, her family, and the public at large that they had sufficient
policies and procedures in place to ensure that the minor students were safe in their
facilities and District.” (Dkt. 18 at ¶ 165). They further allege that NCSD and BOE

affirmatively represented that “Defendant Holland did not have a history of sexually
harassing, assaulting, molesting, abusing, and exploiting children, that District Defendants
did not know or suspect Holland had a history of sexually harassing, assaulting, molesting,
abusing, and exploiting children and/or that District Defendants did not know that Holland
was a danger to the minor students.” (Id. at ¶ 166).

Plaintiffs do not advance any argument in response to Moving Defendants’ motion
to dismiss their claim for intentional misrepresentation. Having not contested the relief
sought, 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.” (quoting Lipton v. Cnty. of Orange, NY, 315 F. Supp.
2d 434, 446 (S.D.N.Y. 2004))). Accordingly, Moving Defendants’ motion to dismiss
Plaintiffs’ claim for intentional misrepresentation is granted.
Finally, the Court has considered whether Plaintiffs should be afforded an additional

opportunity to amend the claims they assert which the Court has concluded are subject to
dismissal. Plaintiffs make a request to amend in a cursory and boilerplate fashion at the
conclusion of their memorandum in opposition to the pending motion (Dkt. 35-2 at 31),
but the request is not a proper motion and it fails to comply with the Court’s Local Rules.
See Wi3, Inc. v. Actiontec Elecs., Inc., 71 F. Supp. 3d 358, 363 (W.D.N.Y. 2014).

Moreover, “an opportunity to amend is not required where the plaintiff has already been
afforded the opportunity to amend.” Diaz v. Henley, No. 9:19-CV-1611 (GLS/DJS), 2020
WL 1849454, at *2 (N.D.N.Y. Apr. 13, 2020). Here, Plaintiffs already amended their
complaint once as a matter of right. Under these circumstances, the Court does not find it
appropriate to grant Plaintiffs an additional opportunity to amend, and the Court dismisses

Plaintiffs’ claims for intentional infliction of emotional distress, negligent infliction of
emotional distress, and intentional misrepresentation with prejudice.
For these reasons, Moving Defendants’ motion to dismiss Plaintiffs’ amended
complaint is denied except as to Plaintiffs’ claims for intentional infliction of emotional
distress, negligent infliction of emotional distress, and intentional misrepresentation, which
are dismissed with prejudice as to the Moving Defendants.
CONCLUSION

For the foregoing reasons, Moving Defendants’ motion to dismiss is granted in part
and denied in part. (Dkt. 32). Plaintiffs’ claims for intentional infliction of emotional
distress, negligent infliction of emotional distress, and intentional misrepresentation as
asserted against Moving Defendants are dismissed with prejudice. Plaintiffs’ remaining
claims against Moving Defendants may proceed.

SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: February 23, 2022
Rochester, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364782. Public record. Not legal advice.