T.S. (a minor child) v. Bay Shore Union Free School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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T.S. INFANT by his Father and Natural Guardian :

THOMAS JOHN STRINGER and THOMAS :

JOHN STRINGER INDIVIDUALLY, :

:

Plaintiffs, :

: MEMORANDUM & ORDER

-against- : 23-cv-3217 (DLI) (RML)

:

BAY SHORE UNION FREE SCHOOL DISTRICT, :

DR. STEVEN J. MALONEY, in his official and :

individual capacities, DR. ISETT LORS in her :

official and individual capacities, and JENNIFER :

INGOLD, :

:

Defendants. :

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DORA L. IRIZARRY, United States District Judge:

On April 28, 2023, Thomas John Stringer (“Stringer”) and T.S. Infant (“T.S.”)

(collectively, “Plaintiffs”) filed this action against Defendants Bay Shore Union Free School

District (“School District”), Steven J. Maloney (“Maloney”), Lisette Lors (”Lors”) (collectively,

“District Defendants”) and Jennifer Ingold (“Ingold”). See, Compl., Dkt. Entry No. 1. The

Complaint alleges five causes of action: (1) a violation of Plaintiffs’ due process rights, specifically

T.S.’ right to privacy, by all Defendants pursuant to 42 U.S.C. § 1983 (“§ 1983”); (2) the District

Defendants’ policies, practices and customs lead to the violation of Plaintiffs’ rights pursuant to §

1983 and Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); (3) negligent training and

supervision by District Defendants contrary to New York State law; (4) negligence under New

York State law by Ingold; and (5) gross negligence under New York State law by Ingold. Id. at

¶¶ 54-89.

Ingold moved to dismiss all claims against her, specifically, the violation of due process,

negligence and gross negligence claims, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a

claim. Pls.’ Mem. in Supp. of Ingold’s Mot. to Dismiss (“Mot.”); Dkt. Entry No. 14-3. Plaintiffs

opposed (“Opposition”). Mem. in Opp’n to Mot. (“Opp’n”), Dkt. Entry No. 18. Ingold replied in

support of her motion (“Reply”). Reply Mem. in Further Supp. of Mot. (“Reply”), Dkt. Entry No.

22. For the reasons set forth below, the Motion is granted as to Stringer’s § 1983 and 14th

Amendment claims as against all Defendants, granted as to Plaintiffs’ Fifth Amendment claims

against all Defendants and granted as to all negligence claims against movant only, and denied as

to T.S.’ § 1983 claim.

BACKGROUND1

This case stems from Ingold’s publication of T.S.’ personal medical and education

information on the internet. Compl. at ¶¶ 1, 5. T.S. has Autism Spectrum Disorder, Attention

Deficit Hyperactivity Disorder, anxiety, and Auditory Defensiveness. Id. at ¶ 32. To

accommodate his learning needs, he requires special education services and an Individualized

Education Program (“IEP”). Id. at ¶ 32. As alleged in the Complaint, IEPs are confidential

documents “protected by state and federal law” containing a student’s “medical, psychological,

emotional diagnoses and disabilities and outlin[ing] specific special/supplemental needs.” Id. at

¶¶ 34, 33. During May 2022, T.S., a minor, was in the eighth grade in the Bay Shore Union Free

School District and enrolled in Ingold’s social studies class. Id. at ¶¶ 31, 35, 37.

In addition to teaching, Ingold, is an author and public speaker whose work has been

featured in “major education-centered publications,” including MiddleWeb.com. Id. at ¶¶ 22, 36.

On May 18, 2022, Ingold published an article in MiddleWeb.com “entitled ‘Sealing Civic

1 The following facts are taken from the Complaint and assumed to be true for purposes of this motion. See, Francis

v. Kings Park Manor, Inc., 992 F.3d 67, 71 (2d Cir. 2021).

Readiness in Our Middle Schools’” (the “Article”). Id. at ¶¶ 39, 37. The Article contained “T.S.’s

[sic] full name, information about the nature and symptoms of his medically diagnosed disabilities,

and the accommodations he receives for his disabilities.” Id. at ¶¶ 39, 37. Specifically, Ingold

“disclosed that T.S. was a special education student” with an IEP who “required a one-on-one

paraprofessional.” Id. at ¶ 39. The Article also contained T.S.’ “medical diagnoses associated

with his disabilities such as emotional anxiety, lack of confidence and extreme shyness.” Id. at ¶

41. It was disseminated widely on the internet, including via Ingold’s Twitter account, as well as

other accounts and in a newsletter, reaching “tens of thousands of people.” Id. at ¶¶ 43-45. The

public dissemination of this information caused psychological, emotional, and financial injury to

Plaintiffs, for which they seek redress. Id. at ¶¶ 5, 57.

DISCUSSION

I. Legal Standard

To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a

complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). The plausibility standard “does not require ‘detailed factual

allegations,’ but it demands more than . . . unadorned, the-defendant-unlawfully-harmed-me

accusation[s].” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court accepts as true all well

pled factual allegations and draws all reasonable inferences in the plaintiff’s favor. LaFaro v. N.Y.

Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (citation omitted). The court’s duty

“is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence

which might be offered in support thereof.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 113

(2d Cir. 2010). Nevertheless, “threadbare recitals of the elements of a cause of action” that are

supported by “conclusory” statements and mere speculation are inadequate and subject to

dismissal. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and

citation omitted); See also, Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions.”).

II. Analysis

Ingold seeks to dismiss all claims against her: (A) the § 1983 claims; and (B) the negligence

claims. Ingold argues that the § 1983 claims must be dismissed because: Stringer cannot make a

§ 1983 claim for the violation of another’s (T.S.’s) rights; a violation of the Family Educational

Rights and Privacy Act (“FERPA”) does not grant an individual right of action and cannot be

recharacterized as a Fourteenth Amendment claim; the Fifth Amendment only applies to the

federal government and federal actors; and, finally, even if Plaintiffs have a valid § 1983 claim,

Ingold is entitled to qualified immunity. Mot. at 3-8. Ingold contends the negligence claims must

be dismissed because neither Plaintiff can establish the elements of a negligence claim on the facts

stated in the Complaint. Id. at 10.

A. § 1983 Due Process

As an initial matter, the Court must address whether Stringer has any independent cause of

action against Defendants pursuant to § 1983. See, Mot. at 8; See also, Reply at 6. It is axiomatic

that a Plaintiff cannot assert the rights of a third-party. Golden Hill Paugussett Tribe of Indians v.

Weicker, 39 F.3d 51, 58 (2d Cir. 1994) (citing Valley Forge Christian College v. Americans United

for Separation of Church & State, Inc., 454 U.S. 464, 474–75 (1982)).

According to Plaintiffs, authority to release a minor child’s confidential and personal

records rests with the parents alone. Opp’n at 14. The release of that information without the

parents’ authorization violates that parent’s rights and gives rise to a § 1983 claim by those parents.

Id. (citing to Runyon v. McCrary, 427 U.S. 160 (1976) and Meyer v. Nebraska, 262 U.S. 390

(1923)). As Plaintiffs acknowledge, the two cases they cite in support of this proposition merely

establish that parents have the right to make decisions about their children’s education. Opp’n at

14. However, these cases provide no guidance where, as here, the issue is the unauthorized

disclosure of records and violation of the right to privacy.

Viewing the Complaint in its entirety, there is no plausible reading of the facts that might

support a claim that Ingold violated Stringer’s right to decide about T.S.’s education or that any of

Stringer’s other Constitutional rights were violated. Thus, the Court finds that Stringer lacks

standing to assert a claim under § 1983 on his own behalf and this claim is dismissed.

The Court’s analysis of Stringer’s standing on this claim equally is applicable to these

claims as to all Defendants, and Plaintiffs have had an opportunity to be heard. Square D Co. v.

Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1365 (2d Cir. 1985), aff'd, 476 U.S. 409, 106

S. Ct. 1922, 90 L. Ed. 2d 413 (1986) (plaintiff should be heard before dismissal). Accordingly,

Stringer’s § 1983 claims against the other Defendants are dismissed.

1. Right to Privacy

T.S.’ claim for a violation of the right to privacy finds more support in the Complaint. The

Fourteenth Amendment protects a “right to privacy [that] can be characterized as a right to

‘confidentiality,’” which “includes the right to protection regarding information about the state of

one's health.” Doe v. City of N.Y., 15 F.3d 264, 267 (2d Cir. 1994); O'Connor v. Pierson, 426 F.3d

187, 201 (2d Cir. 2005). Medical information, particularly information about psychiatric health,

is “information of the most intimate kind.” O'Connor, 426 F.3d at 201; Powell v. Schriver, 175

F.3d 107, 111 (2d Cir. 1999) (the privacy interest at stake “will vary with the [medical] condition”).

Ingold argues that FERPA does not permit a private right of action and “its non-disclosure

requirements may not be enforced under § 1983.” Mot. at 3-6. While FERPA does not confer a

private right of action, nonetheless T.S. has a separate right to make a claim for violation of a

constitutionally protected interest such as privacy. See, Rodgers v. Rensselaer Cnty. Sheriff's

Dep't, 2015 WL 4404788, at *7 (N.D.N.Y. July 17, 2015). Here, the Complaint unambiguously

alleges violations of T.S.’ right to privacy under the Fourteenth Amendment sufficient to state a

claim pursuant to § 1983. Compl. ¶ 55.

Ingold also argues that the Fourteenth Amendment claim should be dismissed because

there are no allegations that shock the conscience necessary to invoke substantive due process.

Reply at 2-5. However, the case most heavily relied upon by Ingold in support of this contention,

Burns v. Cook, 458 F. Supp.2d 29, 42 (N.D.N.Y. 2006), instead supports the conclusion urged by

Plaintiffs. Id. “[A]ssuming that plaintiff's allegations regarding the release of her medical records

are true, plaintiff's privacy and confidentiality rights were clearly infringed upon.” Id. The same

easily can be said about T.S.’ allegations here.

The Court finds that the allegations in the Complaint state a claim for violation of T.S.’

right to privacy and confidentiality contained in the Fourteenth Amendment. At least some of the

information published about T.S., including the nature and symptoms of his disabilities, the

accommodations he receives for these disabilities, and his emotional and psychological

impairments, was of a private and intimate nature. See, Compl. at ¶ 38-41. Its publication on the

internet, along with his name, without consent, gives rise to a claim for violation of T.S.’

constitutional rights under the Fourteenth Amendment.

However, as Ingold contends, the Fifth Amendment only applies to actions by the federal

government and no defendant is a federal actor here. Mot. at 3 (citing Viteritti v. Inc. Village of

Bayville, 831 F.Supp.2d 583, 592 (E.D.N.Y. 2011). Accordingly, Plaintiffs’ Fifth Amendment

claims are dismissed as to all Defendants.

2. Qualified Immunity

Notwithstanding T.S.’ ability to make a § 1983 claim, Ingold contends that she is protected

from suit by the doctrine of qualified immunity. Mot. at 6-7. Qualified immunity shields

“government officials ‘from liability for civil damages insofar as [his or her] conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). Having determined that the Complaint alleges a viable constitutional

violation, the Court now must decide “whether the right was clearly established at the time of the

defendants' actions.” Golodner v. Berliner, 770 F.3d 196, 201 (2d Cir. 2014). The Court must

consider three factors: “(1) whether the right was defined with reasonable specificity; (2) whether

Supreme Court or court of appeals case law supports the existence of the right in question; and (3)

whether under preexisting law a reasonable defendant would have understood that his or her acts

were unlawful.” Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010).

According to Ingold, “there is no case that suggests, under the circumstances pleaded in

this case, that Ingold violated plaintiff’s (sic) clearly established and well-settled privacy rights.”

Mot. at 6. This is a misstatement of the law. The privacy interest in personal medical information

has long been recognized. See, e.g., O'Connor, 426 F.3d at 201 (recognizing right to privacy in

psychiatric health information in 2005); Doe, 15 F.3d at 269 (recognizing right to privacy in

personal medical information in 1994). In light of this well established precedent, the Court finds

that T.S.’ right to privacy in his medical and special education records was clearly established as

of 2022, the time of the events alleged in the Complaint, and that Ingold should have known her

acts were unlawful. Compl. at ¶¶ 3, 37.

Finally, the Complaint contains sufficient factual allegations for the Court to conclude that

Ingold could not have believed that her actions were objectively reasonable. See, Williams v.

Greifinger, 97 F.3d 699, 703 (2d Cir. 1996) (qualified immunity may still be invoked if official’s

actions were “objectively reasonable”). As stated above, the right to privacy in medical and special

education records was clearly established at the time the actions took place. The allegations that

these records were intentionally published without consent demonstrate that Ingold could not have

believed she had permission to publish them. Compl. at ¶¶ 1, 2, 38, 57, 82. As such, Ingold could

not have believed that her actions objectively were reasonable and cannot invoke qualified

immunity on this basis.

To summarize, with regard to Plaintiffs’ § 1983 claims the Court finds that, while Stringer

has no § 1983 claim, the Complaint states a claim for violation of T.S.’ Fourteenth Amendment

right to privacy and confidentiality and there is no basis to invoke qualified immunity. Therefore,

the Motion is granted as to Stringer’s § 1983 claim and denied as to T.S.’ § 1983 claim. Stringer’s

§ 1983 claims are dismissed as to all Defendants.

B. Negligence Claims

Ingold also moves to dismiss Plaintiffs’ negligence claims. See, Mot. at 10. A negligence

claim under New York law has three elements: “(1) the existence of a duty on defendant's part as

to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.” Aegis Ins.

Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 177 (2d Cir. 2013) (quoting Alfaro v. Wal–

Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000) (quotation marks omitted)). Gross negligence

shares the same three elements and “additionally require[s] allegations of ‘conduct that evinces a

reckless disregard for the rights of others or smacks of intentional wrongdoing.’” PC-41 Doe v.

Poly Prep Country Day Sch., 590 F. Supp.3d 551, 568 (E.D.N.Y. 2021) (quoting Taylor Precision

Prod., Inc. v. Larimer Grp., Inc., 2018 WL 4278286, at *18 (S.D.N.Y. Mar. 26, 2018)). The

question of whether a duty exists is for the Court to determine as a matter of law, and, “[i]f the

defendant owes no duty to the plaintiff, the action must fail.” Darby v. Compagnie Nat'l Air

France, 96 N.Y.2d 343, 347 (N.Y. 2001).

Ingold argues the negligence and gross negligence claims fail because the Complaint does

not allege any duty on the part of Ingold to Stringer or to T.S. Mot. at 10; Reply at 7. Plaintiffs

counter that the Complaint states a claim for both negligence and gross negligence because Ingold

breached a duty to Plaintiffs and engaged in behavior evincing reckless disregard for their rights.

Opp’n at 12-13.

As to Stringer’s negligence claims, Plaintiffs do not assert any viable theory by which

Ingold had a direct duty to Stringer. The conclusory statement that Ingold owed a duty to both

Plaintiffs by virtue of her position as T.S.’s teacher, is incorrect as a matter of law. See, Compl.

at ¶ 82. In general, schools and teachers owe a duty to their students, but not to the parents or

guardians of their students. See, Murray v. Rsch. Found. of State Univ. of New York, 283 A.D.2d

995, 996 (4th Dept. 2001)(a school has the duty of a reasonably prudent parent to its students).

Thus, while parents may have a claim on behalf of their child for a tort committed by the school

or teacher, they have no independent claim on their own behalves. There is nothing in the

Complaint or Plaintiffs’ opposition suggesting a basis to depart from this rule. The only alleged

harm suffered by Stringer is indirect and derivative of the alleged harm suffered by T.S.

As for T.S.’ claims of negligence, Plaintiffs’ opposition does not identify any case law that

might lend support for the sufficiency of conclusory statements that such a duty was owed to

Plaintiffs. Opp’n at 12-13. Instead, Plaintiffs’ opposition attempts to conjure a nonexistent

professional standard of care for teachers. Id. at 13 (“Defendant owed a duty of care to act within

the standards of practice of her profession.”). This is without precedent and Plaintiffs’ citation to

a case involving professional standards in the engineering profession is unpersuasive and

unavailing. Id. at 13 n. 41 (citing Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 127 A.D.3d

1377, 1380 (3rd Dept. 2015)).2 Without a basis for Ingold’s duty to T.S., T.S.’ negligence claims

also fail.

Absent a cognizable duty Ingold owed to Plaintiffs, the Complaint fails to state a claim for

negligence and gross negligence. Therefore, Ingold’s Motion is granted as to Plaintiffs’ claims for

negligence and gross negligence and these claims are dismissed.

CONCLUSION

For the reasons set forth above, the motion to dismiss is granted as to Stringer’s § 1983 and

14th Amendment claims as against all Defendants, granted as to Plaintiffs’ Fifth Amendment

claims against all Defendants and granted as to all negligence claims against movant only, and

denied as to T.S.’ § 1983 claim.

SO ORDERED.

Dated: Brooklyn, New York

September 30, 2024

/s/

DORA L. IRIZARRY

United States District Judge

2 Some courts applying New York law have found a “special or confidential relationship” between “student and a

student’s family with a school and its professional employees.” May v. Bd. of Educ. of Harrison Cent. Sch. Dist., No.

04 CIV. 3332, 2005 WL 8180007, at *10 (S.D.N.Y. Sept. 2, 2005) (quoting Blair v. Union Free School Dist., 67 Misc.

2d 248, 253-254 (N.Y. S. Ct. 1971) (quotation marks removed)). There is scant case law to support this reasoning

and it may only apply to intentional infliction of emotional distress claims. The Court does not follow that reasoning

here.