# Wagner

> District Court, N.D. New York · January 8, 2026

URL: https://www.frixlaw.com/law-library/cases/11238797

## Case

- **Full name:** Wyatt Wagner v. Copenhagen Central School District and Scott Connell
- **Court:** District Court, N.D. New York
- **Decided:** January 8, 2026
- **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/11238797

## How later opinions describe it (automated extraction)

- observing that, with respect to “fault,” a plaintiff must plead “either negligence or actual malice depending on the status of the libeled party”
- describing a defendant's burden of establishing a qualified immunity defense in a Rule 12(b)(6) motion as a “formidable hurdle”
- noting alleged defamatory statement must be made “with the applicable level of fault on the part of the speaker”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

WYATT WAGNER,

Plaintiff, 6:25-cv-00659 (BKS/TWD)

v.

COPENHAGEN CENTRAL SCHOOL DISTRICT and
SCOTT CONNELL,

Defendants.

Appearances:

Plaintiff pro se:
Wyatt Wagner
Copenhagen, NY 13626

For Defendants:
Frank W. Miller
Hancock Estabrook, LLP
1800 AXA Tower I
100 Madison Street
Syracuse, NY 13202

Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Wyatt Wagner brings this action under 42 U.S.C. § 1983 and New York law
against Defendants Copenhagen Central School District and Superintendent Scott Connell. (Dkt.
No. 16). Plaintiff alleges that Defendants retaliated against him for protected speech, in violation
of the First Amendment, and violated his Fourteenth Amendment rights to procedural due
process and equal protection. (Id.). Plaintiff also brings state law claims for defamation,
negligence, intentional infliction of emotional distress, promissory estoppel, and retaliation under
New York’s whistleblower protection laws. (Id.). Presently before the Court is Defendants’
motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. No. 31). The motion is fully briefed. (See Dkt. Nos. 31-6, 34, 38). Also before the
Court is Plaintiff’s motion to appoint counsel. (Dkt. No. 59). For the reasons that follow,

Defendants’ motion to dismiss is granted in part and denied in part, and Plaintiff’s motion to
appoint counsel is denied without prejudice.
II. FACTS1
Plaintiff Wyatt Wagner is the “founder of the nonprofit organization Youth of Lewis
County, which provides youth peer support and engagement activities.” (Dkt. No. 16, at 3).
Defendant Scott Connell is the Superintendent of Defendant Copenhagen Central School
District. (Id.). Plaintiff previously worked part-time at Cornell Cooperative Extension, “which
contracted with [ ] Defendants to provide after-school 4-H programming[.]” (Id.).
On November 6, 2024, Plaintiff “raised concerns about student welfare after 4th grade
students reported being unfairly punished by a teacher.” (Id.). Plaintiff and his students had

“utilized the gym for [their] 4-H program activities,” and Plaintiff “ensured that the students
adhered to the rules [he] was previously informed about.” (Dkt. No. 1, at 9). However, the
students later informed Plaintiff that “the gym teacher made the 4H students walk for the entire

1 These facts are drawn from the Amended Complaint, (Dkt. No. 16), and Plaintiff’s response to Defendants’ motion
to dismiss, (Dkt. No. 34). See DeRocha v. Linstruth, No. 18-cv-1052, 2019 WL 5596252, at *1 n.1, 2019 U.S. Dist.
LEXIS 188017, at *3 (N.D.N.Y. Oct. 30, 2019) (“The mandate to read the papers of pro se litigants generously
makes it appropriate to consider a plaintiff’s papers in opposition to a defendant’s motion to dismiss . . . to the extent
that those factual assertions are consistent with the allegations of the plaintiff’s complaint.”). In light of Plaintiff’s
pro se status, and in an abundance of caution, the Court has also considered the Exhibits attached to the original
complaint, which are cited throughout the Amended Complaint. (Dkt. No. 1, at 8-49). The Court assumes the truth
of, and draws reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of N.Y., 952 F.3d
67, 74–75 (2d Cir. 2020), but does not accept as true any legal conclusions asserted therein, see Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
class the following day.” (Id.). Plaintiff communicated his concerns to the principal, “who
dismissed them as a misunderstanding.” (Dkt. No. 16, at 3).
“After the principal’s response,” Plaintiff “pushed further for an investigation[.]” (Id.).
On November 7, 2024, Plaintiff “included the school board in an email regarding the situation.”

(Dkt. Nos. 16, at 3 (citing Dkt. No. 1, at 9)). Plaintiff “requested an in-person meeting with” the
school board “to have an open and constructive dialogue about [the] situation[,]” and informed
the recipients of the email that he “expect[ed] this issue to be fully addressed by November 15,
2024.” (Dkt. No. 1, at 10). Following the email, Connell “directed [P]laintiff’s supervisor” at
Cornell Cooperative Extension “to reprimand [P]laintiff for including the school board in an
email.” (Dkt. No. 16, at 3-4).
After Plaintiff was reprimanded, Plaintiff “requested to meet with [ ] Connell to express
concerns as both the students’ teacher and a resident of the town of Denmark.” (Id. at 3). “This
meeting was granted, and [P]laintiff articulated worries regarding the treatment of the students.”
(Id.). “Following this meeting,” Connell “contacted [Cornell Cooperative Extension] and ordered

them to reassign [Plaintiff] to another school.” (Id. at 4). Plaintiff “could not manage
transportation to another location,” and his position at Cornell Cooperative Extension was
“effective[ly] terminat[ed.]” (Id.).
In December of 2024, Plaintiff exchanged emails with a school secretary to arrange a
date he could come to Copenhagen school to “get the word out there to the youth about [Youth
of Lewis County]’s services[.]” (Dkt. No. 1, at 12-14). On December 30, 2024, Plaintiff was
given a list of available dates, and on January 10, 2025, the school secretary confirmed that a
table would be set up for Plaintiff during the students’ lunch period the following Monday,
January 13, 2025. (Id. at 14).
On January 13, 2025, Plaintiff arrived and signed in for his scheduled visit. (Dkt. No. 16,
at 4). “[S]hortly after” Plaintiff went to the designated location, Plaintiff “was approached by [ ]
Connell and [D]efendant’s school resource officer, who immediately ordered [P]laintiff to leave
the premises without providing a valid reason[.]” (Dkt. No. 16, at 4). After Plaintiff was told to

leave, Plaintiff “expressed disagreement with [Connell], stating, ‘You can’t do this.’” (Id.). The
school “then used [Plaintiff’s] dissent and disagreement regarding [D]efendant’s actions to
charge [P]laintiff with a trespass violation and issue a ban without a hearing, citing security
threats and claiming that [P]laintiff created a disruption.” (Id.). Plaintiff alleges that his behavior
would not “typically be considered a security threat—merely a disagreement.” (Id.).
On January 15, 2025, Plaintiff was issued a trespass notice that restricted his access to the
school. (Id.). The “Notice of No Trespass” states that, if Plaintiff wishes to access the school’s
campus, he “will need to make a written request” to Connell “by either written letter at the
[provided] address” or by email, providing the “purpose of the access” Plaintiff seeks, his
involvement with that purpose, and the time and date. (See Dkt. No. 1, at 36-37). “Following

these events,” Connell also “contacted other schools in the area, causing them to deny [P]laintiff
access to their facilities.” (Dkt. No. 16, at 4-5).
On May 26, 2025, Plaintiff filed an emergency motion seeking injunctive relief, asking
this Court for an “[i]mmediate recission of the trespass notice” and for an order “[p]rohibiting
Defendants from interfering with Plaintiff’s lawful access to Copenhagen School District
facilities for purposes related to Plaintiff’s nonprofit work or other lawful activities.” (Dkt. No. 5,
at 1). The Court held an evidentiary hearing on August 27, 2025, during which the Court denied
Plaintiff’s emergency motion.
III. STANDARD
To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a
complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”
Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations
sufficient “to raise a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S.
at 555). A court must accept as true all factual allegations in the complaint and draw all
reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir.
2014) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)).
However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The complaint of a plaintiff proceeding pro se “must be construed liberally with ‘special
solicitude’ and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738
F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).

“Nonetheless, a pro se complaint must state a plausible claim for relief.” Id.
IV. DISCUSSION
A. Materials Outside the Complaint
As a preliminary matter, Defendants have asked this Court to take judicial notice of
“materials submitted on the prior motion for emergency relief[,]” including “records and
affidavits of these records on the docket.” (Dkt. No. 31-6, at 6 n.1).
On a 12(b)(6) motion, courts may consider:
(1) facts alleged in the complaint and documents attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not
attached or incorporated by reference, (3) documents or information contained in
defendant's motion papers if plaintiff has knowledge or possession of the material and
relied on it in framing the complaint, (4) public disclosure documents required by law to
be, and that have been, filed with the Securities and Exchange Commission, and (5) facts
of which judicial notice may properly be taken under Rule 201 of the Federal Rules of
Evidence.

Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011) (citation omitted).
“[I]f material is not integral to or otherwise incorporated in the complaint, it may not be
considered unless the motion to dismiss is converted to a motion for summary judgment and all
parties are ‘given a reasonable opportunity to present all the material that is pertinent to the
motion.’” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016).
Defendants cite only one case, Staehr v. Hartford Fin. Servs. Grp., Inc., in support of
their request that the Court take judicial notice of materials previously submitted on the motion
for injunctive relief. (See Dkt. No. 31-6, at 8 (citing 547 F.3d 406 (2d Cir. 2008))). In Staehr, the
Second Circuit reiterated that in ruling on a Rule 12(b) motion to dismiss, a court may take
judicial notice of a filing or an occurrence not “for the truth of the matter asserted,” but rather to
establish the fact that something occurred—such as press coverage, prior lawsuits, regulatory
filings, or the filing of a document in another court. See 547 F.3d at 425. Staehr does not,
however, support Defendants’ contention that this Court may take judicial notice of affidavits
submitted at a prior stage of the litigation. C.f. Privado Mktg. Grp. LLC v. Eleftheria Rest Corp.,
No. 13-cv-3137, 2014 WL 3377107, at *4, 2014 U.S. Dist. LEXIS 91658, at *13 (S.D.N.Y. July
7, 2014) (“Nothing in [the 12(b)(6)] standard authorizes the Court to use testimonial documents
submitted at a prior stage in the litigation in order to supplement a party's otherwise-deficient
pleadings[.]”).
Defendants have not explained why the Court should take judicial notice of the
documents filed in connection with Plaintiff’s prior motion for a preliminary injunction, nor have
they identified any authority to support their position. To the extent Defendants ask this Court to
consider certain affidavits attached to the original complaint for the truth of the matters asserted
therein, the Amended Complaint specifically refers to these affidavits (and the trespass notice) as
“false statements about Plaintiff’s conduct[.]”. (See Dkt. No. 16, at 6 (citing Dkt. No. 1, at 20-
37)). On a motion to dismiss, the Court is required to “accept as true all factual allegations in the

complaint and draw all reasonable inferences in the plaintiff's favor[.]” See Port Auth., 768 F.3d
at 253. For these reasons, the Court will not consider documents filed in connection with
Plaintiff’s motion for injunctive relief in deciding Defendants’ motion to dismiss.
Similarly, the Court will not consider the supplemental evidence Plaintiff seeks to have
the Court consider—an email from SHAPE AMERICA to Plaintiff regarding the use of physical
activity as a form of punishment—because it is not integral to or incorporated in the Amended
Complaint. (Dkt. No. 65).2 Plaintiff’s motion to supplement the record with this email (Dkt. No.
65) is therefore denied.
B. Federal Claims
1. Claims Against the Copenhagen Central School District

Defendants seek dismissal of all federal civil rights claims against the Copenhagen
Central School District. (Dkt. No. 31-6, at 8). Defendants argue that Plaintiff has made “no
allegations of any municipal policy, municipal custom, practice, or that Mr. Connell acted as a
final policy maker or that he established a policy regarding the same.” (Id. at 9). Plaintiff
disagrees, arguing that “[a] municipality can be held liable for the single act of an official who
possesses final policymaking authority in a specific area.” (Dkt. No. 34, at 8 (citing Pembaur v.
City of Cincinnati, 475 U.S. 469 (1986))). Plaintiff asserts that Connell, as the District

2 This matter was fully briefed, and the Court has considered all of the parties’ submissions. (See Dkt. Nos. 65; 66;
69).
Superintendent, is responsible for “administering all policies” and therefore “[h]is decision was
the final word on the matter.” (Id. at 8-9).

The Copenhagen Central School District is subject to liability under section 1983
pursuant to the doctrine of municipal liability. See Dodson v. Bd. of Educ. of the Valley Stream
Union Free Sch. Dist., 44 F. Supp. 3d 240, 246 (E.D.N.Y. 2014). Municipal liability is limited
under section 1983 by Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). In
Monell, the Supreme Court found that municipal liability existed “where that organization's
failure to train, or the policies or customs that it has sanctioned, led to an independent
constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). Thus, to
successfully state a claim for Monell liability, a plaintiff must “make factual allegations that
support a plausible inference that the [alleged] constitutional violation took place pursuant either

to a formal course of action officially promulgated by the municipality's governing authority or
the act of a person with policy making authority for the municipality.” Missel v. Cnty. of Monroe,
351 F. App'x 543, 545 (2d Cir. 2009) (citing Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir.
2008)). “Absent such a custom, policy, or usage, a municipality cannot be held liable on a
respondeat superior basis for the tort of its employee.” Jones v. Town of East Haven, 691 F.3d 72,
80 (2d Cir. 2012); see also Los Angeles County, Cal. v. Humphries, 562 U.S. 29, 36 (2010) (“[I]n
Monell the Court held that ‘a municipality cannot be held liable’ solely for the acts of others, e.g.,
‘solely because it employs a tortfeasor.’” (quoting Monell, 436 U.S. at 691)).

“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.’” Casler v. W. Irondequoit Sch. Dist., 563 F. Supp.
3d 60, 71 (W.D.N.Y. 2021) (quoting Hurdle v. Bd. of Educ. of City of New York, 113 F. App’x
423, 424-25 (2d Cir. 2004)). “Where a plaintiff seeks to hold a municipality liable for a single
decision by a municipal policymaker, the plaintiff must show that the official had final
policymaking power.” Jones v. Bay Shore Union Free Sch. Dist., 170 F. Supp. 3d 420, 438

(E.D.N.Y. 2016) (quoting Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)), aff'd, 666 F.
App’x 92 (2d Cir. 2016). “[T]he critical inquiry is not whether an official generally has final
policymaking authority; rather, the court must specifically determine whether the government
official is a final policymaker with respect to the particular conduct challenged in the lawsuit.”
Id. “[W]here a plaintiff relies not on a formally declared or ratified policy, but rather on the
theory that the conduct of a given official represents official policy, it is incumbent on the
plaintiff to establish that element as a matter of law.” Id. (quoting Jeffes v. Barnes, 208 F.3d 49,
57-58 (2d Cir. 2000)). “It does not suffice for these purposes that the official has been granted
discretion in the performance of [their] duties.” Jeffes, 208 F.3d at 57. “The official must also be
responsible for establishing final government policy respecting such activity before the

municipality can be held liable.” Pembaur v. City of Cincinnati, 475 U.S. 469, 482–83 (1986).
“Under New York Education law, a Superintendent is subject to the direction and
supervision of the Board of Education, and has no vote on Board decisions.” Jones, 170 F. Supp.
3d at 438 (citing N.Y. Educ. Law § 1711(2)(a),(3)). “Boards of Education have final authority
over various matters, including [ ] regulating conduct on district property.” Id. (citing N.Y. Educ.
Law §§ 1708-1709, 2801). “New York Education law gives the Superintendent the power ‘[t]o

enforce all provisions of law and all rules and regulations . . . of the board of education,’ but not
to promulgate or otherwise create rules, regulations, or policies of [their] own.” Id. (quoting N.Y.
Educ. Law § 1711). “While a Superintendent may be a decision-maker, the Board of Education is
the final policymaker.” Id. (citation omitted).

Here, Plaintiff contends that Connell’s decision to issue the trespass notice “was the final
word on the matter[,]” and as such “his actions represent official District policy[.]” (Dkt. No. 34,
at 9). But the fact that Connell “has been granted discretion in the performance of his duties” is
not enough to establish that Connell acted as a final policymaker. See Jeffes, 208 F.3d at 57. That
Connell’s decision “was the final word on the matter” is likewise insufficient to allege that
Connell acted as a final policymaker. See Hurdle, 113 F. App'x at 427 (“Authority to make a final
decision need not imply authority to establish rules. . . . That a particular agent is the apex of a
bureaucracy makes the decision ‘final’ but does not forge a link between ‘finality’ and ‘policy.’”
(citation omitted)). Plaintiff has identified no state law or regulation supporting his position that

Connell, as opposed to the school board, has final authority over conduct on district property.3
See Jones, 170 F. Supp. at 438-39 (citing N.Y. Educ. Law §§ 1708-1709, § 1711(2)(a),(3), 2801).
All of the actions allegedly taken by Connell were discretionary enforcement actions.
Accordingly, Defendants’ motion to dismiss Plaintiff’s federal civil rights claims against the
District is granted.
2. First Amendment Retaliation

Defendants argue that Plaintiff’s First Amendment retaliation claim is without merit,
because Plaintiff’s conduct “was not protected speech or protected activity[,]” and “even if the
speech were protected,” “Plaintiff’s own conduct gave rise to appropriate intervention by a

3 Plaintiff cites to the District’s “own policies” which “designate the Superintendent as the ‘chief executive officer of
the District’ who is responsible for ‘administering all policies[.]’”(Dkt. No. 34, at 8 (citing Dkt. No. 34-4, at 10-12).
But these policies do not grant Connell policymaking authority; rather, as Plaintiff himself notes, the Superintendent
is “empowered” to “translate policies of the Board into action[.]” (Id. (citing Dkt. No. 34-4, at 10 (emphasis
added))).
school resource officer to arrest the Plaintiff and remove him from the premises.” (Dkt. No. 31-6,
at 17).4 Plaintiff disagrees, arguing that his “email advocating for students who were unfairly
punished is protected speech on a matter of public concern[,]” and that the “temporal proximity
between [his] advocacy and the adverse actions” against him suggests a causal connection. (Dkt.

No. 34, at 10).
“To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right
protected by the First Amendment; (2) the defendant's actions were motivated or substantially
caused by his exercise of that right; and (3) the defendant's actions caused him some injury.”
Dorsett, 732 F.3d at 160. “If an official takes adverse action against someone for engaging in
protected speech, and ‘non-retaliatory grounds are in fact insufficient to provoke the adverse
consequences,’ the injured person may generally seek relief by bringing a First Amendment
claim.” Handsome, Inc. v. Town of Monroe, No. 23-711, 2024 WL 2747142, at *5, 2024 U.S.
App. LEXIS 12830, at *13 (2d Cir. May 29, 2024) (quoting Nieves v. Bartlett, 587 U.S. 391, 398
(2019) (internal quotations omitted)). “The official's retaliatory motive must be a ‘but-for’ cause,

meaning that the adverse action against the plaintiff would not have been taken absent the
retaliatory motive.” Id.
With respect to the first element, Defendants argue that “it is not a legitimate form of
speech to create a disruption in a schoolhouse while classes are in session causing disruption in

4 Defendants also argue, with respect to Plaintiff’s termination from his previous employment, that they are not
responsible for actions taken by Plaintiff’s previous employer. (Dkt. No. 31-6, at 15). Plaintiff disagrees, asserting
that he suffered an adverse action when Connell contacted his employer with false allegations leading to his
termination. (Dkt. No. 34, at 10). In the First Amendment retaliation context, an “adverse action” is “conduct that
would deter a similarly situated individual of ordinary firmness from exercising [their] constitutional rights.” Cox v.
Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 273 (2d Cir. 2011) (citation omitted); see also Dorsett v. County of
Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (noting that a First Amendment retaliation plaintiff must “show either that
[their] speech has been adversely affected by the government retaliation or that [they have] suffered some other
concrete harm” and collecting cases). Here, the Court will not decide whether a phone call to Plaintiff’s employer
with allegedly false allegations would constitute an “action” that caused Plaintiff injury for the purposes of a First
Amendment Retaliation claim, because Defendants have not briefed the issue.
school operations.” (Dkt. No. 31-6, at 17). But this misrepresents the basis of Plaintiff’s claim.
Plaintiff does not assert that “creat[ing] a disruption in a schoolhouse” is a form of protected
speech; rather, Plaintiff contends Defendants retaliated against him for “[a]dvocating for student
welfare” and “[r]eporting staff misconduct[.]” (Dkt. No. 16, at 6). Defendants do not address

whether Plaintiff’s email to the school board constituted protected speech, nor have they briefed
the Court on the applicable law.5 As such, the Court will not dismiss the Complaint on this basis.
See Whitley v. Bowden, No. 17-cv-3564, 2018 WL 2170313, at *12, 2018 U.S. Dist. LEXIS
79287, at *43 (S.D.N.Y. May 10, 2018) (declining to consider argument for dismissal where
defendants cited “generic caselaw” in a single sentence; argument was “not sufficiently argued”
by defendants, “who [were] represented by counsel and attempting to dismiss a pro se
Complaint” (quoting Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998))) (collecting cases).
Defendants also argue that the causation element is not satisfied because the “very
allegations of the complaint support that the actions of the Defendants were not motivated by
some illegal or inappropriate motive but rather were based on objectively reasonable criteria.”
(Dkt. No. 31-6, at 17).6 Plaintiff disagrees, arguing he “suffered a series of severe adverse

actions” after he sent an email “advocating for students” to the school board. Plaintiff argues that
“the causal connection is established by the temporal proximity between [his] advocacy and the
adverse actions,” (Dkt. No. 34, at 10), and in the “pattern of antagonism” that followed his
alleged protected conduct, (Dkt. No. 16, at 6).

5 The Court notes that at least one court in the Second Circuit has found that a citizen’s right to advocate for students
at public meetings is an interest protected by the First Amendment. See, e.g., Jones, 170 F. Supp. 3d at 433
(“Plaintiff has adequately demonstrated an interest protected by the First Amendment: his right to advocate for
minority students within the District at public meetings.”).
6 Plaintiff’s sole citation in support of this assertion is to Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 285 (1977). But Mt. Healthy does not support dismissal. In Mt. Healthy, the Court found that the plaintiff had
carried his burden to show causation, but that the lower court had erred in subsequently failing to conduct the proper
burden-shifting analysis. 429 U.S. at 287.
The Second Circuit has observed that it is difficult to plead a defendant's motive and
intent with specificity in a complaint. Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d Cir.
1994). “Such matters [as the defendants’ motivation] are required only to be averred generally in
a complaint, and need not be pled with specificity.” Jones v. Bay Shore Union Free Sch. Dist.

(Jones II), 947 F. Supp. 2d 270, 276 (E.D.N.Y. 2013) (internal quotations and citation omitted).
“[T]o survive a motion to dismiss for lack of causation, ‘the plaintiff’s pleading need not clearly
establish that the defendant harbored retaliatory intent. It is sufficient to allege facts which could
reasonably support an inference to that effect.’” Stajic v. City of New York, 214 F. Supp. 3d 230,
235 (S.D.N.Y. 2016) (quoting Posr v. Court Officer Shield No. 207, 180 F.3d 409, 418 (2d Cir.
1999)). Causation may be shown “(1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or through other circumstantial evidence such as
disparate treatment of [others] who engaged in similar conduct; or (2) directly, through evidence
of retaliatory animus directed against the plaintiff by the defendant.” Clayton v. City of
Middletown, 564 F. Supp. 2d 105, 112 (D. Conn. 2008) (quoting Gordon v. New York City Bd. of

Educ., 232 F.3d 111, 117 (2d Cir. 2000)). See also Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.
2009) (citations omitted)) (noting that the Court may “exercise its judgment about the
permissible inferences that can be drawn from temporal proximity in the context of particular
cases”) (citation omitted).
Here, Defendants do not cite any facts in the Amended Complaint supporting their
assertion that “[t]he very allegations of the complaint” show that Defendants did not have an
“illegal or inappropriate motive[.]” (Dkt. No. 31-6, at 17). Plaintiff alleges that, after he raised
concerns about student welfare, Connell contacted his employer and demanded Plaintiff be
reprimanded and reassigned. (See Dkt. No. 16, at 3-4). Two months later, when Plaintiff was
scheduled to table for his youth advocacy organization at Copenhagen Central School, he was
confronted by Connell, ordered to leave the premises, and issued a trespass notice. (Id. at 4).
Mindful of the Second Circuit’s acknowledgement that it is difficult to plead a defendant's
motive and intent with specificity in a complaint, see Gagliardi, 18 F.3d at 195, the Court finds

Plaintiff’s allegations sufficient “to raise a right to relief above the speculative level” with
respect to Plaintiff’s First Amendment retaliation claim, see Mayor, 709 F.3d at 135. Plaintiff has
satisfied his burden by alleging Defendants’ motivation “generally[,]” and Defendants’ motion to
dismiss is therefore denied with respect to Plaintiffs’ First Amendment Retaliation claim. See
Jones II, 947 F. Supp. 2d at 276 (holding that the court could not decide issue of the defendant
school district’s motivation at the motion to dismiss stage, where the plaintiff was an “outspoken
critic” of the school district and was no longer permitted on district property).
3. Procedural Due Process
Courts “examine procedural due process questions in two steps: the first asks whether
there exists a liberty or property interest which has been interfered with by the State; the second

examines whether the procedures attendant upon that deprivation were constitutionally
sufficient.” Bangs v. Smith, 84 F.4th 87, 97 (2d Cir. 2023).” In order to sufficiently allege a due
process claim, [ ] a plaintiff must first allege a protected liberty or property interest.” Jones II,
947 F. Supp. 2d at 279. “A liberty interest may arise from the Constitution itself, by reason of
guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by
state laws or policies.” Bangs, 84 F.4th at 97 (quoting Wilkinson v. Austin, 545 U.S. 209, 221
(2005)). “Mere expectations do not necessarily give rise to a state-created liberty interest
protected by the Due Process Clause.” Rodriguez v. McLoughlin, 214 F.3d 328, 338 (2d Cir.
2000). “[A] State creates a protected liberty interest by placing substantive limitations on official
discretion.” Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 462 (1989)
(citation omitted).
Defendants argue that that Plaintiff does not possess “a protected property right in
attending events on school property[.]” (Dkt. No. 31-6, at 19). The Court agrees. “Access to

school grounds [ ] is not a protected liberty or property interest.” See Jones II, 947 F. Supp. 2d at
279 (collecting cases); Doe v. Salina, No. 23-cv-3529, 2024 WL 5077629, at *22, 2024 U.S.
Dist. LEXIS 224362, at *68 (E.D.N.Y. Dec. 11, 2024) (holding superintendent's “No Trespass
Letter ‘forbidding [Plaintiff] from entering school grounds [without the express written consent
of the Superintendent]’” failed to implicate a protected liberty or property interest (quoting
Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 724 (2d Cir. 1994))).
Plaintiff contends that Defendants “created a protected liberty interest” when the District
“granted [him] explicit permission to be on school property for the January 13th event[,]” and
Plaintiff “had a legitimate claim of entitlement to be there for the specified purpose and
duration.” (Dkt. No. 34, at 10-11). But Plaintiff points to no “expectation or interest created by

state laws or policies” from which the Court could infer such an entitlement, see Bangs, 84 F.4th
at 97, nor does he cite any authority suggesting that an email granting “permission” to enter
school property on one occasion creates a protected liberty or property interest. C.f. Silano, 42
F.3d at 725 (holding school district’s “general policy statement” welcoming “members of the
community and other persons to visit the schools” did not “vest the public with a protected
liberty interest in visiting [district] schools”). Because Plaintiff has failed to allege a liberty or
property interest in attending events on school property, Defendants’ motion to dismiss Plaintiff’s
procedural due process claim is granted.
4. Equal Protection
Defendants seek dismissal of Plaintiff’s equal protection claim because Plaintiff has
“failed to designate or describe in the pleading other persons similarly situated.” (Dkt. No. 31-6,
at 21). Plaintiff disagrees, arguing he has “stated a plausible ‘class of one’ equal protection claim

by alleging [he] was intentionally treated differently from other similarly situated community
partners without a rational basis.” (Dkt. No. 34, at 11).
The Equal Protection Clause of the Fourteenth Amendment states that “[n]o State shall ...
deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. The Equal Protection Clause “requires that the government treat all similarly situated
people alike.” Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir.
2001) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “[T]he

prototypical equal protection claim involves discrimination against people based on their
membership in a vulnerable class.” Id. Where a plaintiff does not allege membership in a
protected class or group, they may nevertheless state an equal protection claim by alleging that
either they were discriminated against as a “class of one” or the laws were selectively enforced
against them for impermissible reasons. See Missere v. Gross, 826 F. Supp. 2d 542, 560
(S.D.N.Y. 2011); see also Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp.
2d 679, 693 (S.D.N.Y. 2011).
To state a “class-of-one” equal protection claim, a plaintiff must plausibly allege that they
were “intentionally treated differently from others similarly situated and that there is no rational

basis for the difference in treatment.” See Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). This requires a plaintiff to establish: “that (i) no rational person could regard the
circumstances of the plaintiff to differ from those of a comparator to a degree that would justify
the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.” Progressive Credit Union v. City of New York, 889
F.3d 40, 49 (2d Cir. 2018) (quoting Ruston v. Town Bd. For Skaneateles, 610 F.3d 55, 59-60 (2d

Cir. 2010)). To prevail on such a claim, a plaintiff “must show an extremely high degree of
similarity between themselves and the persons to whom they compare themselves.” Id. (quoting
Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). Plaintiffs must be “prima facie
identical” to the comparators because this comparison provides an inference that the difference in
treatment “lack[s] any reasonable nexus with a legitimate governmental policy.” Id. (quoting
Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005), overruled on other grounds, Appel v.
Spiridon, 531 F.3d 138, 140 (2d Cir. 2008)).

Here, the Complaint contains no allegations identifying any “similarly situated
community partner.” (See Dkt. No. 34, at 11). Plaintiff has not shown an “extremely high degree
of similarity” between himself and any other individual, as would support a class-of-one claim.
See Progressive Credit Union, 889 F.3d at 49. Therefore, Plaintiff has not plausibly stated a
class-of-one claim, and Defendants’ motion to dismiss Plaintiff’s equal protection claim is
granted.

5. Qualified Immunity
Defendants contend that the federal claims against Connell are barred by the doctrine of
qualified immunity. (Dkt. No. 31-6, at 10). Qualified immunity is an affirmative defense on
which defendants bear the burden of proof. Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013).
For a qualified immunity defense asserted in a motion to dismiss to be successful, the “facts
supporting the defense [must] appear on the face of the complaint,” and the plaintiff “is entitled
to all reasonable inferences from the facts alleged . . . that defeat the immunity defense.”
McKenna v. Wright, 386 F.3d 432, 434, 436 (2d Cir. 2004) (describing a defendant's burden of
establishing a qualified immunity defense in a Rule 12(b)(6) motion as a “formidable hurdle”).
“Therefore, although possible, ‘usually, the defense of qualified immunity cannot support the

grant of a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted.’”
Hershey v. Goldstein, 938 F. Supp. 2d 491, 521 (S.D.N.Y. 2013) (quoting McKenna, 386 F.3d at
436) (internal punctuation omitted). It is premature to resolve a qualified immunity defense on
the basis of allegations in a complaint when those allegations “do not sufficiently ‘support the
defense on the face of the complaint.’” Id. (quoting McKenna, 386 F.3d at 435) (internal
punctuation omitted).
Here, Defendants assert that Connell is entitled to qualified immunity based on Connell’s

“objectively reasonable, good faith belief[s].” (Dkt. No. 31-6, at 11). But Defendants’ argument
relies on issues of fact, with citations to affidavits submitted in connection with the prior motion
for preliminary relief. (Id. at 10-11). Defendants do not cite to any facts appearing on the face of
the Amended Complaint that support their qualified immunity defense. Therefore, Defendants’
motion to dismiss based on qualified immunity is denied without prejudice.
C. State Law Claims

1. Notice of Claim
Defendants argue that all of Plaintiff’s state law claims must be dismissed because he has
failed to “submit to a lawful 50-h examination.” (Dkt. No. 31-6, at 22). Plaintiff disagrees,
arguing that Defendants “waived their right” to a 50-h examination, because Defendants
adjourned the original hearing and “failed to reschedule for the ‘earliest possible date available’”
as required by law. (Dkt. No. 34, at 7 (citing N.Y. Gen. Mun. Law § 50-h(5))).
Under section 50-e of New York's General Municipal Law, “[a]s a condition precedent to
bringing a state law tort claim against a municipality[,] a plaintiff must file a Notice of Claim
within ninety days after [their] claim accrues.” Frantz v. City of Oswego, No. 15-cv-1193, 2017
WL 4737258, at *4, 2017 U.S. Dist. LEXIS 173413, at *10 (N.D.N.Y. Oct. 19, 2017) (quoting

Przybyla v. Cty. of Suffolk, No. 09-cv-5129, 2017 WL 1274051, at *2, 2017 U.S. Dist. LEXIS
30842, at *3-4 (E.D.N.Y. Mar. 3, 2017)).7 Under section 50-h of New York's General Municipal
Law, “[a]fter a notice of claim is filed against a school district, the district “shall have the right to
demand an examination of the claimant[.]” G.D.S., 915 F. Supp. 2d at 280 (quoting N.Y. Gen.
Mun. Law § 50-h(1)). “Where a demand for examination has been served [ ] no action shall be
commenced against the [ ] school district against which the claim is made unless the claimant has
duly complied with such demand for examination[.]” N.Y. Gen. Mun. Law § 50-h(5). Section 50-
h(5) further provides:

If such examination is not conducted within ninety days of service of the demand, the
claimant may commence the action. The action, however, may not be commenced until
compliance with the demand for examination if the claimant fails to appear at the hearing
or requests an adjournment or postponement beyond the ninety day period. If the
claimant requests an adjournment or postponement beyond the ninety day period, the [ ]
school district shall reschedule the hearing for the earliest possible date available.
“Notice of Claim requirements are construed strictly and failure to comply ordinally leads to
[dismissal] of the state law causes of action.” Williams v. City of Syracuse, No. 22-cv-0067, 2023
WL 1071437, at *5, 2023 U.S. Dist. LEXIS 14395, at *13 (N.D.N.Y. Jan. 27, 2023) (citing
Hardy v. N.Y. City Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999)).

7 The notice of claim requirements also apply to plaintiffs bringing tort actions against a school district. See G.D.S.
ex rel. Slade v. Northport-E. Northport Union Free Sch. Dist., 915 F. Supp. 2d 268, 280 (E.D.N.Y. 2012); N.Y.
Gen. Mun. Law § 50-h(1).
Defendants seek dismissal of all of Plaintiff’s state law claims, arguing that Plaintiff filed
a notice of claim but failed “to submit to a lawful 50-h examination.” (Dkt. No. 31-6, at 22).
Plaintiff argues that Defendants adjourned the original date of the 50-h of the examination
without his consent, failed to reschedule for the earliest available date, and did not “provide a

link or any means of access” for the rescheduled date. (Dkt. No. 34, at 7-8). Defendants have
filed a copy of a new demand for examination, which is dated July 2, 2025. (Dkt. No. 31-4). But
Plaintiff does not allege he was ever served with such a demand—in fact, Plaintiff alleges he was
not given a way to access that meeting. (Dkt. No. 34, at 8). The parties’ arguments thus rely on
materials outside the Amended Complaint and appear to hinge on factual disputes. (See, e.g.,
Dkt. Nos. 31-1; 34-1; 34-2).
The Court cannot consider this dispute, based on evidence outside the Amended

Complaint, on this motion to dismiss. Neither the Amended Complaint nor Plaintiff’s briefing
indicates the date upon which Plaintiff was served with a demand for examination—nor whether
he was served with a second demand related to a “later-proposed hearing on July 16[.]” (See Dkt.
No. 34, at 8). See also Nolan v. Cnty. of Erie, No. 19-cv-01245, 2020 WL 1969329, at *4, 2020
U.S. Dist. LEXIS 72729, at *13 (W.D.N.Y. Apr. 24, 2020) (“[A] plaintiff will not be barred from
pursuing state law claims in federal court prior to submitting to a § 50-h examination when there
is a “dispute that the demand for examination was properly served in the first place.” (quoting
Foy v. City of N.Y., 2019 WL 3717317, at *9, 2019 U.S. Dist. LEXIS 132714, at *25 (E.D.N.Y.
Aug. 7, 2019))). Therefore, the Court will not dismiss Plaintiff’s state law claims for failure to
comply with state notice of claim requirements at this time, and the motion to dismiss on this
basis is denied without prejudice.8

2. Defamation
Defendants assert that Plaintiff’s defamation claim must be dismissed because Plaintiff
has made “only generalized allegations of alleged false and defamatory statements about the
Plaintiff[,]” and “Plaintiff has not identified any of those statements[.]” (Dkt. No. 31-6 at 23).
Defendants also argue that Plaintiff has not alleged that Defendants “have in any way publicized
these statements to any person outside the members of the Board of Education or the office of the
Superintendent.” (Id.).9 Plaintiff disagrees, noting that he alleges the statements were false and
that they were “published to [his] employer (causing [his] termination) and to law enforcement
(causing [his] arrest), and they have irreparably harmed [his] professional reputation.” (Dkt. No.

34, at 11).
To state a claim for defamation under New York law, a plaintiff must allege “(1) a false
statement that is (2) published to a third party (3) without privilege or authorization, and that (4)
causes harm, unless the statement is one of the types of publications actionable regardless of
harm.” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017). “New York law mandates
that in actions for defamation, ‘the particular words complained of shall be set forth in the

8 The Court notes that a notice of claim is not necessary with respect to Plaintiff’s promissory estoppel claim. See
NRP Holdings LLC v. City of Buffalo, No. 11-CV-472S, 2015 WL 9463199, at *4, 2015 U.S. Dist. LEXIS 172153,
at *11 (W.D.N.Y. Dec. 28, 2015), aff'd, 916 F.3d 177 (2d Cir. 2019).
9 Defendants further assert that Plaintiff has failed to allege that the statements were “motivated by malice.” (Dkt.
No. 31-6, at 23). However, the case that Defendants cite in support of this proposition makes no mention of malice.
(Id. (citing Wegner v. Town of Cheektowaga, 73 N.Y.S.3d 300 (N.Y. App. Div. 2018))). Moreover, a plaintiff is not
necessarily required to allege malice on the part of the speaker. See Grayson v. Ressler & Ressler, 271 F. Supp. 3d
501, 514 (S.D.N.Y. 2017) (noting alleged defamatory statement must be made “with the applicable level of fault on
the part of the speaker”); Biro v. Conde Nast, 883 F. Supp. 2d 441, 456 (S.D.N.Y. 2012) (observing that, with
respect to “fault,” a plaintiff must plead “either negligence or actual malice depending on the status of the libeled
party”).
complaint.’” Rsrv. Sols. Inc. v. Vernaglia, 438 F. Supp. 2d 280, 289 (S.D.N.Y. 2006) (quoting
N.Y. C.P.L.R. 3016(a)). However, “[u]nlike in state court, defamation claims brought in federal
court are not subject to a heightened pleading standard. Conti v. Doe, No. 17-cv-9268, 2019 WL
952281, at *8, 2019 U.S. Dist. LEXIS 31408, at *21 (S.D.N.Y. Feb. 27, 2019) (citing Biro, 883

F. Supp. 2d at 456). “Nevertheless, allegations of defamation pleaded in federal court must ‘be
specific enough to afford [the] defendant sufficient notice of the communications complained of
to enable him to defend himself.’” Id.
Here, Defendants incorrectly assert that Plaintiff is required to state “the actual words of
either libel or slander” in the Amended Complaint. (See Dkt. No. 31-6, at 23); D’Annunzio v.
Ayken, Inc., 876 F. Supp. 2d 211, 216 (E.D.N.Y. 2012) (“A plaintiff need not plead a defamatory
statement in haec verba, but the pleadings must be sufficient to ‘afford the defendant sufficient

notice of the communications complained of to enable [them] to defend [them]self.’ (quoting
Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986))). Nevertheless, the Court agrees that
Plaintiff has failed to sufficiently identify the allegedly defamatory statements or to whom those
statements were made. (Dkt. No. 31-6, at 23). To the extent that Plaintiff’s defamation claim is
based on Connell’s contact with Plaintiff’s employer—namely, that Connell “directed
[Plaintiff’s] supervisor to reprimand plaintiff for including the school board in an email[,]” and
subsequently “ordered” Plaintiff’s employer “to reassign [him] to another school”—the
Amended Complaint does not allege that Connell made any false statements during those phone
calls. (See Dkt. No. 16, at 3-4). Plaintiff’s response memorandum offers only conclusory

assertions that Connell made false statements to Plaintiff’s employer. (See Dkt. No. 34, at 10-
11).
With respect to the trespass notice, Plaintiff does not allege how or when this notice was
“communicated to third parties, including law enforcement and other educational institutions.”
(See Dkt. No. 16, at 7). Plaintiff’s generalized allegations of “professional blacklisting” are also
insufficient to state a claim; while Plaintiff alleges Connell “contacted other schools in the area,

causing them to deny plaintiff access to their facilities” such that his “ability to conduct youth
programming and nonprofit work” has been “severely impacted[,]” (see Dkt. No. 16, at 4-5),
Plaintiff does not provide any details as to which schools were contacted, when they were
contacted, or what was said. See Thai v. Cayre Group, Ltd., 726 F.Supp.2d 323, 329
(S.D.N.Y.2010) (“A defamation claim is only sufficient if it adequately identifies the purported
communication, and an indication of who made the communication, when it was made, and to
whom it was communicated.” (citation omitted)). Because Plaintiff does not plead facts “specific
enough to afford” Defendants “sufficient notice of the communications complained of” to enable
them to defend themselves, Defendants’ motion to dismiss is granted with respect to Plaintiff’s
defamation claims. See Conti, 2019 WL 952281, at *8, 2019 U.S. Dist. LEXIS 31408, at *21.

3. Whistleblower Protection
Defendants argue that Plaintiff’s claim under New York State Whistleblower law must be
dismissed, because Plaintiff, as “a volunteer working for an outside organization[,]” “has not
alleged circumstances that bring him within the scope of” the Whistleblower law, and Plaintiff
has not alleged a “danger to the public health and safety.” (Dkt. No. 31-6, at 24-25. Plaintiff
disagrees, asserting that NY Labor Law § 740 “now protects ‘natural persons employed as

independent contractors[,]’” and that his “report of improper student punishment constitutes a
report of potential danger to the welfare of minors.” (Dkt. No. 34, at 12).
“Section 740 prohibits an employer from ‘tak[ing] any retaliatory action against an
employee . . . because such employee . . . discloses, or threatens to disclose to a supervisor or to
a public body an activity, policy or practice of the employer that the employee reasonably
believes is in violation of law, rule or regulation.’” Callahan v. HSBC Sec. (USA) Inc., 723 F.

Supp. 3d 315, 326 (S.D.N.Y. 2024) (quoting N.Y. Lab. Law § 740(2)(a)). Section 740’s
definition of “employee” includes “natural persons employed as independent contractors to carry
out work in furtherance of an employer's business enterprise[.]” N.Y. Lab. Law § 740(1)(a).
“Under Section 740, neither the complaint to the employer nor the complaint filed in court need
identify the actual law, rule, or regulation the employer violated, but ‘the employee's complaint
to the company must identify the particular activities, policies or practices in which the employer
allegedly engaged, so that the complaint provides the employer with notice of the allegedly
complained-of conduct.’” HC2, Inc. v. Delaney, 510 F. Supp. 3d 86, 96 (S.D.N.Y. 2020) (quoting
Tonra v. Kadmon Hldg’s, Inc., 405 F. Supp. 3d 576, 586 (S.D.N.Y. 2019)). “Moreover, the
substantive allegations of the complaint must allege facts that, if true, would violate a specific

law, rule or regulation.” Id. (collecting cases).
“New York courts have also stringently construed the requirement that a plaintiff seeking
to state a Section 740 claim properly plead that the employer's conduct presented a ‘a substantial
and specific danger to the public health and safety.’” Barker v. Peconic Landing at Southold,
Inc., 885 F. Supp. 2d 564, 570 (E.D.N.Y. 2012) (quoting N.Y. Labor L. § 740(2)(a)). “Thus, the
statute has been construed as requiring a ‘certain quantum of dangerous activity before its

remedies are implicated.’” Id. (quoting Peace v. KRNH, Inc., 785 N.Y.S.2d 547, 549 (N.Y. App.
Div. 2004)).
The Court agrees that Plaintiff has not alleged facts that, if true, would present a
“substantial and specific danger to the public health and safety.” See Barker, 885 F. Supp. 2d at
570. Plaintiff’s sole allegation of allegedly unfair punishment is that his 4-H students were, on
one occasion, required to walk for the duration of gym class. (See Dkt. No. 1, at 9). Plaintiff’s

conclusory assertion that a single incident of “improper student punishment” presents “a
potential danger to the welfare of minors,” (see Dkt. No. 34, at 12), without citation to any
authority or to state law, is insufficient to plausibly allege that Defendants violated a specific law,
rule or regulation. See HC2, Inc., 510 F. Supp. 3d at 96. Therefore, Defendants’ motion to
dismiss is granted with respect to Plaintiff’s whistleblower claims.
4. Negligence
Defendants assert that Plaintiff’s claim for negligence must be dismissed, because “there

was no duty owed to [Plaintiff] and further, there was no breach of that duty[.]” (Dkt. No. 31-6,
at 26). Plaintiff disagrees, arguing that Defendants owed him a duty of care “as an invited
visitor,” and Defendants “breached this duty by failing to follow their own policies and acting
arbitrarily, leading to [his] wrongful removal and arrest[.]” (Dkt. No. 34, at 12).
To establish a prima facie case of negligence under New York law, a plaintiff must show:
“(1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that

duty; and (3) the plaintiff suffered damage as a proximate result.” Noakes v. Syracuse Univ., 369
F. Supp. 3d 397, 420 (N.D.N.Y. 2019) (quoting Williams v. Utica Coll. of Syracuse Univ., 453
F.3d 112, 116 (2d Cir. 2006)). While the Court has serious doubts as to the viability of Plaintiff’s
negligence claim, Defendants have cited no applicable caselaw supporting their position that a
school district owes no duty of care to a visitor who had scheduled to be at a table at the school.
(See Dkt. No. 31-6, at 26). Defendants’ assertion that there was “no breach of [any] duty” is
likewise unsupported by caselaw, or by any explanation. (See id.). Therefore, the Court will not
grant Defendants’ motion to dismiss Plaintiff’s negligence claim at this time. See Clarke v.
Antonini, No. 21-cv-1877, 2022 WL 4387357, at *5, 2022 U.S. Dist. LEXIS 171707, at *13
(S.D.N.Y. Sept. 22, 2022) (denying motion to dismiss where defendants “fail[ed] to provide any

arguments or legal authority supporting their position”); accord Bisson v. Reppel, No. 13-cv-245,
2014 WL 3386059, at *4, 2014 U.S. Dist. LEXIS 92954, at *10 (D. Vt. July 9, 2014).
5. Intentional Infliction of Emotional Distress
Defendants seek dismissal of Plaintiff’s claim for intentional infliction of emotional
distress, arguing that Plaintiff has failed to meet the “stringent pleading standard” required to
make such a claim. (Dkt. No. 31-6, at 27). Plaintiff disagrees, arguing that “a public official
fabricating a pretext to have a citizen arrested and professionally ruined in retaliation for speech

can be considered [ ] outrageous in character[.]” (Dkt. No. 34, at 12-13 (internation quotations
and citation omitted)).
The Court agrees that Plaintiff has failed to plausibly state a claim. In New York, “a
claim for intentional infliction of emotional distress requires a showing of (1) extreme and
outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of
causing, severe emotional distress; (3) a causal connection between the conduct and the injury;
and (4) severe emotional distress.” Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999); accord.
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014). Conduct must be “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 society,” Stuto,
164 F.3d at 827, and “[w]hether the alleged conduct is sufficiently outrageous enough to satisfy
[this element] is a matter of law for a court to decide[,]” Baez v. JetBlue Airways, 745 F. Supp.
2d 214, 223 (E.D.N.Y. 2010). “[T]he standard for stating a valid claim of intentional infliction of
emotional distress is rigorous, and difficult to satisfy.” Id. (quoting Conboy v. AT & T Corp., 241
F.3d 242, 258 (2d Cir. 2001)).
Here, Plaintiff alleges that Connell issued a trespass notice based on “alleged

undocumented and uncommunicated incidents[,]” and that his contact with other schools has
“severely impacted [P]laintiff’s ability to conduct youth programming[,]” (see Dkt. No. 16, at 4-
5). These actions are not sufficiently outrageous or extreme to plausibly state a claim. See Lan
Sang v. Ming Hai, 951 F. Supp. 2d 504, 530 (S.D.N.Y. 2013) (“The ‘rigor of the outrageousness
standard [for intentional infliction of emotional distress] is well-established,’” and the threshold
is “exceedingly difficult to meet.” (quoting Mesa v. City of N.Y., No. 09-cv-10464, 2013 WL
31002, at *28, 2013 U.S. Dist. LEXIS 1097, at *85 (S.D.N.Y. Jan. 3, 2013))). Thus, the Court
grants Defendants’ motion to dismiss with respect to Plaintiff’s claims for intentional infliction
of emotional distress.

6. Promissory Estoppel
Defendants seek dismissal of Plaintiff’s promissory estoppel claim, arguing that, while
Plaintiff alleges “in conclusory fashion that the ‘school district’ made a clear and unambiguous
promise to allow him access to the school for a scheduled event on January 13, 2024,” “Plaintiff
fails to allege who made the promise and what the details of the promise were.” (Dkt. No. 31-6,
at 28). Plaintiff asserts that the emails from District staff “constitute a clear and unambiguous
promise of access” for the January 13, 2025 event, and that he “reasonably relied on this

promise” and “suffered a direct injury . . . as a result of the District’s arbitrary revocation of that
promise.” (Dkt. No. 34, at 13).
“Promissory estoppel is a legal fiction designed to substitute for contractual consideration
where one party relied on another’s promise without having entered into an enforceable
contract.” Drummond v. Akselrad, No. 23-CV-179, 2023 WL 3173780, at *11, 2023 U.S. Dist.
LEXIS 75793, at *36 (S.D.N.Y. May 1, 2023) (quoting Bader v. Wells Fargo Home Mortg. Inc.,

773 F. Supp. 2d 397, 414 (S.D.N.Y. 2011)). Under New York law, “[a] plaintiff may establish
promissory estoppel through proving three elements: (1) the defendant’s “clear and unambiguous
promise”; (2) upon which the plaintiff reasonably relied; (3) to [their] detriment.” Ford v.
Rensselaer Polytechnic Inst., 507 F. Supp. 3d 406, 421 (N.D.N.Y. 2020) (quoting NRP Holdings
LLC v. City of Buffalo, 916 F.3d 177, 202 (2d Cir. 2019)). “A clear and unambiguous promise
need not take any prescribed form.” See Drummond, 2023 WL 3173780, at *11, 2023 U.S. Dist.
LEXIS 75793, at *38-39) (collecting cases).

Here again, while the Court has doubts as to the viability of Plaintiff’s promissory
estoppel claim, Defendants base their arguments on a controverted reading of Plaintiff’s
submissions. First, Defendants argue that Plaintiff “fails to allege who made the promise and
what the details of the promise were[.]” (Dkt. No. 31-6, at 28). But Plaintiff attached to his
original complaint a copy of an email exchange between himself and a secretary for Copenhagen
Central School, which he alleges is a “promise” to permit Plaintiff access to the school on
January 13, 2025. (See Dkt. Nos. 1, at 12-14; 16, at 8; 34, at 13). Defendants also argue that
“permission was given to the organization known as the Youth of Lewis County[,]” not to
Plaintiff “personally.” (Dkt. No. 31-6, at 28-29). However, Defendants cite to nothing in the

Complaint or in Plaintiff’s submissions that supports this assertion, and the email exchange
appears to indicate Plaintiff himself was granted permission to visit. (See Dkt. No. 1, at 13-14
(greeting Plaintiff by his first name and reminding him “[t]here will be a table and chairs set up
for you” and that he would need to sign in and get visitor pass)). Finally, Defendants contend that
“no promise” was made, “only permission granted” in the form of “a license to come onto
property.” (Dkt. No. 31-6, at 29). Yet Defendants have cited no applicable caselaw supporting
their assertion that this was insufficient to constitute a promise. (See Dkt. No. 31-6, at 29).

Having challenged only the sufficiency of the allegation of a promise, Defendants’ motion to
dismiss is therefore denied as to Plaintiff’s promissory estoppel claim.
D. Leave to Amend
Under Federal Rule of Civil Procedure 15(a)(2) a court should freely give leave to amend
“when justice so requires.” See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.
2007). Under Rule 15(a), absent certain circumstances not at play here, a party may amend its
pleading only with the opposing party's written consent or the court's leave. See Fed. R. Civ. P.

15(a)(1)–(2). “Generally, leave to amend should be freely given, and a pro se litigant in particular
should be afforded every reasonable opportunity to demonstrate that he has a valid claim.”
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Matima v. Celli, 228 F.3d 68, 81 (2d
Cir. 2000). But a court may, in its discretion, deny leave to amend “for good reason, including
futility, bad faith, undue delay, or undue prejudice to the opposing party.” MSP Recovery Claims,
Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (quoting Bensch v. Est. of Umar,
2 F.4th 70, 81 (2d Cir. 2021).
Here, Plaintiff has already amended the complaint once, but that was before a ruling
detailing the deficiencies in the allegations. In his response memorandum, Plaintiff asserted that

he would “amend the complaint to plead with greater particularity” if the Court found the
defamation claim insufficient. The Court will grant Plaintiff leave to amend. If he seeks to file a
Second Amended Complaint, he must do so within thirty days. Plaintiff is advised that any such
Second Amended Complaint will replace the existing complaint, and must be a wholly integrated
and complete pleading that does not rely upon or incorporate by reference any pleading or
document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124,
1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the

original, and renders it of no legal effect.” (internal quotation marks omitted)). The Court
reminds Plaintiff that any exhibits Plaintiff wishes the Court to consider going forward must be
attached to any Second Amended Complaint. This means that his previous complaints and other
filings will no longer be the operative documents containing their pleadings and exhibits—
everything that is essential must be contained in or attached to the Second Amended Complaint.
E. Motion to Appoint Counsel
Plaintiff requests the appointment of a pro bono attorney “due to [his] status as a college
student living independently,” with a full-time job that pays $16.50 an hour. (Dkt. No. 59, at 1).
Plaintiff notes that he “and those close to [him] lack any financial resources to support [him].”
(Id.). Plaintiff has also submitted a list of attorneys and firms he has contacted in an effort to

obtain pro bono counsel. (See id. at 1-6).
Plaintiffs bringing civil actions have no constitutional right to the appointment of
counsel. See, e.g., United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). However, pursuant
to 28 U.S.C. § 1915(e), the court may request an attorney to represent an indigent party. 28
U.S.C. § 1915(e)(1) (authorizing the court to “request an attorney to represent any person unable
to afford counsel”). Courts cannot utilize a bright-line test in determining whether counsel should
be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir.
1997). Instead, a number of factors must be carefully considered by the court in ruling upon such
a motion:
[The Court] should first determine whether the indigent's position seems likely to be of
substance. If the claim meets this threshold requirement, the court should then consider
the indigent's ability to investigate the crucial facts, whether conflicting evidence
implicating the need for cross examination will be the major proof presented to the fact
finder, the indigent's ability to present the case, the complexity of the legal issues and any
special reason in that case why appointment of counsel would be more likely to lead to a
just determination.

Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v.
Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)) (internal quotation marks omitted). This is
not to say that all, or indeed any, of these factors are controlling in a particular case; rather, each
case must be decided on its own facts. See Velasquez v. O'Keefe, 899 F. Supp. 972, 974
(N.D.N.Y. Oct. 16, 1995) (citing Hodge, 802 F.2d at 61). The Court must consider the issue of
appointment carefully because “every assignment of a volunteer lawyer to an undeserving client
deprives society of a volunteer lawyer available for a deserving cause.” Cooper v. A. Sargenti
Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
At this preliminary stage, the Court is unable to determine whether Plaintiff meets the
threshold requirement that at least some aspects of his claim are “likely to be of substance.” See
Horowitz, 28 F.3d at 1341. Moreover, Plaintiff has thus far been able to adequately litigate this
case on his own. The Court is not aware of any special reason why appointment of counsel in
this case is warranted at this time. And the Court is also mindful of the scarcity of volunteer
lawyers and the need to allocate that resource with the utmost care. See Cooper, 877 F.2d at 172.
Therefore, Plaintiff’s motion for the appointment of counsel is denied without prejudice.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motion to dismiss (Dkt. No. 31) is GRANTED as to
Plaintiff’s procedural due process and equal protection claims, Plaintiff’s claims under 42 U.S.C.
§ 1983 against the Copenhagen Central School District, and as to Plaintiff's state law claims for
defamation, intentional infliction of emotional distress, and retaliation under New York’s
whistleblower protection laws, and all of those claims are DISMISSED; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 31) is otherwise DENIED;
and it is further
ORDERED that Plaintiff's motion for leave to file supplemental evidence (Dkt. No. 65)
is DENIED; and it is further
ORDERED that Plaintiff's motion to appoint counsel (Dkt. No. 59) is DENIED without
prejudice; and it is further
ORDERED that any amended complaint must be filed within thirty (30) days of the date
of this Order; and it is further
ORDERED that if Plaintiff does not file a Second Amended Complaint within thirty (30)
days, Defendants are directed to file an answer to the First Amended Complaint in accordance
with the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
Dated: January 8, 2026
Syracuse, New York DADA db Qa (C anne
Brenda K. Sannes
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11238797. Public record. Not legal advice.