Baeringer v. Plainview-Old Bethpage Central School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LEWIS BAERINGER, CINDY

BAERINGER, individually and as the

parents and natural guardians of H.B.,

their infant daughter,

MEMORANDUM AND ORDER

Plaintiffs, Case No. 23-cv-03557 (FB) (SIL)

-against-

PLAINVIEW-OLD BETHPAGE

CENTRAL SCHOOL DISTRICT and

ALICE BOWMAN, individually and in

her official capacities as an employee of

the school district,

Defendants.

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Appearances:

For the Plaintiffs: For the Defendants:

MICHAEL R. WALKER ADAM I. KLEINBERG

Gallagher, Walker, Bianco & Plastaras, SAMANTHA VELEZ

LLP Sokoloff Stern LLP

98 Willis Avenue 179 Westbury Avenue

Mineola, NY 11501 Carle Place, NY 11514

BLOCK, Senior District Judge:

In this civil-rights case brought by Plaintiffs Lewis and Cindy Baeringer

individually and on behalf of their infant daughter, H.B., Defendants the

Plainview-Old Bethpage Central School District (the “District”) and Principal

Alice Bowman (“Bowman”) (collectively, “the Defendants”) move to dismiss for

failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For

the following reasons, Defendants’ motion is granted in part and denied in part.

I. BACKGROUND

On a Rule 12(b)(6), the Court assumes the complaint’s factual allegations,

but not legal conclusions, to be true. See Pension Ben. Guar. Corp. ex rel. St.

Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d

705, 717 (2d Cir. 2013). To survive, the complaint must include enough facts to

state a claim to relief that is facially plausible, see Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007), i.e., the plaintiff must plead “factual content that allows

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

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

The case springs from a medical issue involving H.B., a middle-school

student at the District’s Plainview-Old Bethpage Middle School, located in Nassau

County. On January 31, 2022, H.B. experienced unspecified emotional distress

“arising from events involving other students,” which led H.B. to seek the services

of a school counselor/psychologist. The school counselor advised Plaintiffs that

H.B. would need to be removed from school, evaluated, and psychologically

cleared by an independent psychologist before returning to school. At around 4:30

PM that day, H.B. received the evaluation from an independent psychologist, who

notified the school counselor that H.B was cleared to return to school.

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Plaintiffs allege that several hours later, the District/Bowman contacted the

Nassau County Police Department to have H.B. “undergo an involuntary, forced,

and unnecessary, second psychological evaluation.” In the early evening of the

same day, January 31, 2022, numerous police officers arrived at Plaintiffs’

residence and forcibly and involuntarily transported H.B. via police ambulance to

Nassau University Medical Center for a second psychological evaluation.

At the Medical Center, Plaintiffs state that Cindy Baeringer and H.B. were

placed in an observation room and “observed” for several hours before the

individual psychological evaluation was performed on H.B. This evaluation

cleared H.B., who was then released to go home. Plaintiffs allege that the District

and Bowman’s actions were in retaliation for “prior events and occurrences

between the parties.” Plaintiffs commenced suit, bringing federal claims pursuant

to 42 U.S.C § 1983 and a state-law claim for negligence.

II. DISCUSSION

A. Fourteenth Amendment Due Process Claims

The Court denies Defendants’ motion to dismiss Plaintiffs’ procedural and

substantive due process claims, which differ in that substantive due process

challenges “the fact of the removal itself,” rather than the “procedures by which a

removal is effected.” Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir.

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2012) (discussing theories).

1. Procedural Due Process

Plaintiffs state a claim for procedural due process against Bowman, which

requires two elements: “(1) the existence of a property or liberty interest that was

deprived and (2) deprivation of that interest without due process.” Bryant v. N.Y.

State Educ. Dept., 692 F.3d 202, 218 (2d Cir. 2012). Before parents may be

deprived without their consent of their “constitutionally protected liberty interest in

the care, custody and management of their children” under the Fourteenth

Amendment, “due process—ordinarily a court proceeding resulting in an order

permitting removal—must be accorded to them.” Tenenbaum v. Williams, 193

F.3d 581, 593 (2d Cir. 1999). Thus, this procedural due process right “may be

violated by government official’s removal of a child even for a brief period of

time.” S.G. v. Success Acad. Charter Sch., Inc., No. 18 CIV. 2484 (KPF), 2019

WL 1284280, at *14 (S.D.N.Y. Mar. 20, 2019) (citing Phillips v. County of

Orange, 894 F. Supp. 2d 345, 375 (S.D.N.Y. 2012)). Here, Plaintiffs allege that

Bowman violated their procedural due process rights by initiating an involuntary,

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unnecessary removal and medical examination of H.B.1

While emergency circumstances — i.e., where “the child is immediately

threatened with harm,” which must be more than the “mere possibility of danger”

— may justify the removal of a child, Tenenbaum, 193 F.3d at 593-94, Plaintiffs

sufficiently allege that there was no emergency to justify the involuntary removal

of H.B. Taking the Complaint’s allegations as true, the District had already

cleared H.B. to return to school; moreover, there was no school scheduled for the

next day. Thus, no emergency justified the removal of H.B.

While Defendants claim that no procedural due process claim will lie where

1 Defendants’ argument that Plaintiff-parents lack standing to assert due process

claims is misplaced. Defendants rely on cases establishing that parents cannot

bring due process claims based on their children’s school suspension, see

Moskowitz v. Great Neck Union Free Sch. Dist., No. 20CV1659KAMSIL, 2021

WL 4268138, at *15 (E.D.N.Y. Aug. 4, 2021), report and recommendation

adopted, No. 20CV1659KAMSIL, 2021 WL 3878777 (E.D.N.Y. Aug. 31, 2021),

or based on in-school student harassment of their child. See HB v. Monroe

Woodbury Cent. Sch. Dist., No. 11-CV-5881 CS, 2012 WL 4477552, at *18

(S.D.N.Y. Sept. 27, 2012). But here, Plaintiffs’ have standing based on their own

rights — their liberty interests in the custody, care, and management of their

children — as parents. The Second Circuit is clear that “both the parents and the

children may have a cause of action for violation of the Fourteenth Amendment

under a theory of denial of procedural due process, and “a parent may also bring

suit under a theory of violation of his or her right to substantive due process.”

Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2012). Thus,

Plaintiffs may proceed with their Fourteenth Amendment claims both individually

and on behalf of H.B. See Patrick v. Success Acad. Charter Sch., Inc., 354 F.

Supp. 3d 185, 208 (E.D.N.Y. 2018) (mother “may bring due process claims on

behalf of her minor son”).

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parents have not lost custody of their children, the cases on which they rely are

factually distinct. See, e.g., K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.

Supp. 2d 197, 202 (S.D.N.Y. 2013) (in-school interview of child without parental

consent did not violate liberty interest). By contrast, Plaintiffs allege the physical,

involuntary, and unnecessary removal of H.B. from her parents’ home; as the

Second Circuit stated in Tenenbaum, the physical removal of the child from school

was tantamount to “remov[al] [of the] child from her [parents’] ordinary care,

custody and management.” 193 F.3d at 595. For that reason, lower courts in the

Second Circuit have distinguished between cases where the child is interviewed

but not removed from school grounds, which does not implicate parental custodial

rights, and physical removal, which does. See Phillips v. Cnty. of Orange, 894 F.

Supp. 2d 345, 373 n.27 (S.D.N.Y. 2012) (citing id. at 594-95).

Accordingly, because Plaintiffs’ allegations plainly implicate the “right

under the Due Process Clause to remain together [with their children] without the

coercive interference of the awesome power of the state,” Southerland v. City of

New York, 680 F.3d 127, 142 (2d Cir. 2012) (quoting Tenenbaum, 193 F.3d at

600)), and they allege personal involvement by Bowman, Plaintiffs state colorable

procedural due process claims against Bowman. See, e.g., Tenenbaum, 193 F.3d at

595 (a jury could find that removal of child from school for non-emergency

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medical examination without parental consent or a court order violated procedural

due-process rights); S.G., 2019 WL 1284280, at *18 (plaintiff stated procedural

and substantive due process claims where school officials caused the plaintiff “to

be removed from school to the emergency room without parental consent when

there was no urgent medical necessity”).

2. Substantive Due Process

Similarly, Plaintiffs state a claim for violation of substantive due process,

which requires allegations that the state action was “so shocking, arbitrary, and

egregious that the Due Process Clause would not countenance it even were it

accompanied by full procedural protection.” Tenenbaum, 193 F.3d at 600.

While “short separations” of children from their parents generally do not

violate substantive due process rights, Southerland, 680 F.3d at 143, even “if done

in a manner that violates procedural due process,” see McLoughlin v. Rensselaer

Cnty. Dep’t of Soc. Servs., No. 118CV0487LEKCFH, 2019 WL 3816882, at *9

(N.D.N.Y. Aug. 14, 2019) (citing Tenenbaum, 193 F.3d at 600), the Second Circuit

has recognized that in “truly extraordinary circumstances,” even brief deprivations

of custody may suffice for plaintiffs to state a substantive due process custody

claim. Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011).

The facts alleged here do not permit the Court to conclude, as a matter of

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law, that Plaintiffs failed to state a substantive due process claim because there was

neither an emergency nor a child-abuse investigation. The Complaint alleges that

Bowman acted with malice by retaliating against Plaintiffs, which may suffice to

state a substantive due process claim. MC v. Arlington Cent. Sch. Dist., No. 11-

CV-1835 CS, 2012 WL 3020087, at *6 n.10 (S.D.N.Y. July 24, 2012) (collecting

cases). While discovery may later undermine this narrative, the Court cannot

dismiss the Complaint now because it alleges conscience-shocking behavior. See

County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“Conduct intended to

injure in some way unjustifiable by any government interest is the sort of official

action most likely to rise to the conscience-shocking level.”); Rodriguez v. City of

New York, 72 F.3d 1051, 1061 (2d Cir. 1995) (“As a substantive matter, due

process does not permit the involuntary hospitalization of a person who is not a

danger either to herself or to others”); S.G., 2019 WL 1284280, at *17

(“Defendants are alleged to have deliberately and in bad faith used the EMS

removal and hospitalization as a form of discipline, without any legitimate medical

purpose. . . . Such conduct, if proven, easily would support findings [] that

Defendants’ actions shocked the conscience.”); Camac v. Long Beach City Sch.

Dist., No. 09-CV-5309, 2011 WL 3030345, at *4, 14 (E.D.N.Y. July 22, 2011)

(alleged false report to police of student’s suicide attempt and falsely testifying

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under oath to same, which resulted in child’s commitment at hospital, stated

substantive due process claim).

B. Fourth Amendment Claims

The Court also denies Defendants’ motion to dismiss as to the Fourth

Amendment unreasonable search and seizure/false imprisonment/false arrest claim

against Bowman.2 See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991) (false

arrest and false imprisonment claims are “synonymous” for purposes of the legal

analysis); McCarthy v. Roosevelt Union Free Sch. Dist., No. 15CV01468JFBSIL,

2017 WL 4155334, at *4 (E.D.N.Y. Sept. 19, 2017) (construing false

imprisonment, false arrest, and unreasonable search and seizure claims together

where duplicative). This claim requires that: “(1) the defendant intended to

confine [her], (2) the plaintiff was conscious of the confinement, (3) the plaintiff

did not consent to the confinement, and (4) the confinement was not otherwise

privileged.” Jocks v. Tavernier, 316 F.3d 128, 134–35 (2d Cir. 2003). The

involuntary removal and hospitalization of H.B. by police constitutes a

2 Fourth Amendment rights are “personal rights that cannot be asserted vicariously

but may be brought on behalf of a child by a parent.” E.D. ex rel. V.D. v.

Tuffarelli, 692 F. Supp. 2d 347, 366 (S.D.N.Y. 2010), aff’d sub nom. E.D. ex rel.

Demtchenko v. Tuffarelli, 408 F. App’x 448 (2d Cir. 2011). Thus, the Court

construes the Complaint’s Fourth Amendment claims as being asserted by the

Baeringer parents on behalf of H.B.

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confinement for the purposes of false arrest/imprisonment claims. See Glass v.

Mayas, 984 F.2d 55, 58 (2d Cir. 1993) (involuntary confinement at hospital “was

tantamount to the infringement of being arrested”).

Defendants argue that liability will not attach “where police officers

detained and hospitalized a plaintiff based upon their own interactions.” But as

courts have recognized, “there is an exception to this rule where a plaintiff can

show that defendant instigated his arrest, thereby making the police agents in

accomplishing defendant’s intent to confine the plaintiff.” TADCO Const. Corp. v.

Dormitory Auth. of State of New York, 700 F. Supp. 2d 253, 268–69 (E.D.N.Y.

2010). Thus, drawing reasonable inferences in Plaintiffs’ favor, they sufficiently

allege Fourth Amendment claims — that Bowman contacted the police knowing

that H.B. had already been cleared to return to school. As liability may lie if the

“complainant intentionally provided false information to instigate an arrest by law-

enforcement officials, or had no reasonable basis for the report,” there are issues of

fact as to what Bowman knew and told the police. Biswas v. City of New York, 973

F. Supp. 2d 504, 519 (S.D.N.Y. 2013) (declining to dismiss false arrest claim

against Department of Education defendants who summoned the police); see also

Camac, 2011 WL 3030345, at *8 (whether school principal’s conduct — falsely

telling police that student threatened to commit suicide — “rises to the level of

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instigating is a question of fact” and survives motion to dismiss).

C. Qualified Immunity

The Court denies Bowman’s affirmative defense of qualified immunity,

which “shields federal and state officials from money damages unless the plaintiff

pleads facts showing (1) that the official violated a statutory or constitutional right,

and (2) that the right was clearly established at the time of the challenged conduct.”

Sabir v. Williams, 52 F.4th 51, 58 (2d Cir. 2022). “[E]ven if the right was clearly

established,” a court can still find a suit blocked by qualified immunity where “it

was objectively reasonable for the officer to believe the conduct at issue was

lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013).

While a court can decide qualified immunity on a Rule 12(b)(6) motion,

“advancing qualified immunity as grounds for a motion to dismiss is almost always

a procedural mismatch and, therefore, usually not successful” because a plaintiff

“need not plead facts showing the absence of such a defense in the complaint.”

Steele-Warrick v. Microgenics Corp., 671 F. Supp. 3d 229, 245 (E.D.N.Y. 2023)

(cleaned up).

Because the Court has determined that Plaintiffs have plausibly alleged that

Bowman violated their constitutional rights, the Court turns to whether — based on

the Complaint’s allegations — a reasonable officer would know that such conduct

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was unconstitutional at the time. The Court concludes that any reasonable person,

let alone a principal, would know that instigating the removal, seizure, and

involuntary hospitalization of H.B. when she was already psychologically cleared

violates constitutional rights under both the Fourth and Fourteenth Amendments.

See, e.g., Biswas, 973 F. Supp. 2d at 521 (“no reasonable person could believe that

it was lawful to report such knowingly false information to cause the arrest of the

plaintiff”); Camac, 2011 WL 3030345, at *17 (principal calling police to falsely

report student threatened suicide was not objectively reasonable as a matter of

law); Rateau v. City of New York, No. 06-CV-4751 KAM/CLP, 2009 WL

3148765, at *6 (E.D.N.Y. Sept. 29, 2009) (denying qualified immunity because

defendant should know that falsely instigating arrest violates constitutional rights).

D. Monell Claim Against the District

Because there is no respondeat superior under Section 1983, the District is

not liable for the acts of employees unless there was a policy or custom that caused

the plaintiff to be deprived of a constitutional right. See Agosto v. New York City

Dep't of Educ., 982 F.3d 86, 97 (2d Cir. 2020) (citing Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 691 (1978)). A “policy or custom,” in

turn, may be shown only through “the decisions of a government’s lawmakers, the

acts of its policymaking officials, and practices so persistent and widespread as to

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practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011).

As an initial matter, the Court can rule out several bases for Monell liability.

First, the Complaint alleges no municipal-wide policy or custom of calling the

police on students who had already been cleared to return to school; rather, the

Complaint suggests an isolated incident in which a principal had a personal

vendetta against a student’s family, which hardly suffices as policy or custom. See

Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012) (“[I]solated acts ... by

non-policymaking municipal employees are generally not sufficient to demonstrate

a municipal custom, policy, or usage that would justify municipal liability.”).

Indeed, Bowman’s actions appear to be in direct conflict with established policy,

whereby students who are psychologically cleared can return to school. Second,

the failure-to-train allegations are merely conclusory, and there is no suggestion

that proper training could have prevented the principal from acting in a rogue

manner against policy. See McCarthy, 2017 WL 4155334, at *6 n.8

The Court next concludes that Bowman is not a final policymaker for

Monell purposes, which requires the official to be “sufficiently high up in the

municipal hierarchy that [she] was responsible under state law for making policy in

that area of the municipality’s business.”3 Agosto, 982 F.3d at 98. Courts,

3 Similarly, Plaintiffs fail to allege that a policymaking official “had notice of a

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including the Second Circuit in Agosto, have concluded that principals are not final

policymakers under Monell and rejected the theory that “a public-school principal

acts as a final policymaker to the extent that the ultimate harm that befell the

plaintiff was under the principal’s control.” Id. at 100-01. Critically, New York

law grants the Board of Education, not the principal, the power “[t]o establish such

rules and regulations [as shall seem proper] concerning the order and discipline of

the schools.” Wang v. Bethlehem Cent. Sch. Dist., No. 121CV1023LEKDJS, 2022

WL 3154142, at *11 (N.D.N.Y. Aug. 8, 2022).

Indeed, Plaintiffs’ opposition brief belies their assertion that Bowman is a

final policymaker; as they state, Bowman is empowered to enforce the Code of

Conduct. But as courts have held, the principal’s authority to enforce policy is not

tantamount to final policymaking authority. See Jones v. Bay Shore Union Free

Sch. Dist., 170 F. Supp. 3d 420, 438 (E.D.N.Y.), aff’d, 666 F. App’x 92 (2d Cir.

2016) (“the power to enforce all provisions of law and all rules and regulations of

the board of education but not to promulgate or otherwise create rules, regulations,

potentially serious problem of unconstitutional conduct, such that the need for

corrective action or supervision was obvious, and the policymaker's failure to

investigate or rectify the situation evidences deliberate indifference, rather than

mere negligence or bureaucratic inaction.” O’Kane v. Plainedge Union Free Sch.

Dist., 827 F. App’x 141, 143 (2d Cir. 2020) (stating standard for deliberate

indifference).

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or policies of his own” makes an official a decision-maker, but not final

policymaker). Accordingly, while Bowman may have discretion in the

performance of her duties and decision-making power to enforce the Code, she is

not, as a matter of law, a final policymaker. See Kennedy v. Bethpage Union Free

Sch. Dist., No. 20-CV-72 (PKC) (ARL), 2022 WL 377972, at *5 (E.D.N.Y. Feb. 8,

2022), aff’d, No. 22-447-CV, 2023 WL 1770421 (2d Cir. Feb. 6, 2023); O’Kane v.

Plainedge Union Free Sch. Dist., No. 16CV5693FBARL, 2019 WL 4575390, at *4

(E.D.N.Y. Sept. 20, 2019), aff’d, 827 F. App’x 141 (2d Cir. 2020). Consequently,

the Court dismisses the Monell claim against the District.

E. Negligence

While Plaintiffs’ theory of negligence is unclear, their allegations against the

District fail to state a claim. First, a claim for negligent hiring, training, and

supervising fails because Plaintiffs do not allege that the “defendant knew of the

employee’s propensity to commit the alleged acts or that defendant should have

known of such propensity had it conducted an adequate hiring procedure.”

Simpson ex rel. Simpson v. Uniondale Union Free Sch. Dist., 702 F. Supp. 2d 122,

135 (E.D.N.Y. 2010). To the extent Plaintiffs allege that the District was negligent

in failing to have appropriate policies, their factual allegations in the Complaint

undermine their conclusory allegations: they claim that Defendants acted in

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contravention of policy by subjecting H.B. to an evaluation after she had already

been cleared. Finally, Plaintiffs cannot avail themselves of a negligence claim to

impute liability to the District based on respondeat superior because liability will

not attach where an “employee commits a tort for personal motives unrelated to the

furtherance of the employer’s business.” Flores v. Saulpaugh, 115 F. Supp. 2d

319, 325 (N.D.N.Y. 2000). Here, the Complaint alleges such a personal motive by

stating that Bowman’s actions were “retaliation for prior events and occurrences

that had occurred between the parties.”

Plaintiffs do, however, state a negligence claim against Bowman because

principals owe a duty of reasonable care to their students. See JG & PG ex rel.

JGIII v. Card, No. 08 CIV. 5668 (KMW), 2009 WL 2986640, at *10 (S.D.N.Y.

Sept. 17, 2009). However, because principals do not owe duties to parents, see

Murray v. Rsch. Found. of State Univ. of New York, 723 N.Y.S.2d 805, 807 (4th

Dep’t 2001); see also W.A. v. Hendrick Hudson Cent. Sch. Dist. & Kathleen

Coughlin, No. 14-CV-8093 (KMK), 2016 WL 1274587, at *14 (S.D.N.Y. Mar. 31,

2016) (collecting cases), Plaintiffs may proceed only on behalf of H.B. See JG,

2009 WL 2986640, at *10.

III. CONCLUSION

For the foregoing reasons, Defendants’ motion is GRANTED in part and

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DENIED in part. Plaintiffs’ procedural and substantive due process claims and

Fourth Amendment claims pursuant to § 1983 and negligence claims against

Bowman survive; their claims against the District are dismissed.

SO ORDERED.

_/S/ Frederic Block__________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

June 25, 2024

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