Killian

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

TRAVIS KILLIAN, individually and as

natural parent and legal guardian

of his minor children (L.K.) and (Q.K.),

DECISION AND ORDER

Plaintiff,

v. 6:25-CV-06582 EAW

FAIRPORT CENTRAL SCHOOL DISTRICT,

ROBERT CLARK, MADISON POWER, and

ANDREA SAITTA,

Defendants.

INTRODUCTION

Pro se plaintiff Travis Killian (“Plaintiff”), acting individually and on behalf of his

minor children, L.K. and Q.K., commenced an action against defendants Fairport Central

School District (the “District” or “FCSD”) and its personnel (collectively “Defendants”)

on October 16, 2025, asserting causes of action pursuant to 42 U.S.C. § 1983, 42 U.S.C.

§ 1986, the First and Fourteenth Amendments, and state law.

Pending before the Court is Defendants’ motion to dismiss (Dkt. 15), Plaintiff’s

motion for leave to file supplemental authority (Dkt. 20), and Plaintiff’s motion for leave

to file a sur-reply (Dkt. 27). For the reasons set forth below, Plaintiff’s motions are granted,

and Defendants’ motion is granted in part and denied in part.

BACKGROUND

I. Factual Background

The instant facts are taken from Plaintiff’s complaint. (Dkt. 1). As required at this

stage of the proceedings, Plaintiff’s well-pleaded factual allegations are taken as true.

Plaintiff is the father of L.K. and Q.K. and shares joint legal custody with the

children’s mother (“the mother”)1 pursuant to a custody agreement entered in 2019. (Id. at

¶¶ 10, 17). Plaintiff lives in California, and the mother has residential custody under the

custody agreement. (Id.). L.K. and Q.K. are enrolled in FCSD schools.

On December 29, 2020, Plaintiff contacted Child Protective Services (“CPS”)

regarding suspected abuse in the mother’s household, but “no intervention[]” occurred.

(Id. at ¶ 19). On May 16, 2023, L.K. texted Plaintiff reporting abuse in the mother’s home

and desiring to move to California. (Id. at ¶ 20). On June 13, 2023, Plaintiff retained an

attorney to obtain primary residency of L.K. and Q.K. in California. (Id. at ¶ 21). On June

25, 2023, L.K. emailed Plaintiff a list of 39 points detailing abuse in the mother’s

household, including threats against speaking with CPS. (Id. at ¶ 22).

During the 2022-2023 school year, L.K. reported the alleged abuse to defendant

Andrea Saitta (“Saitta”), a FCSD teacher. (Id. at ¶¶ 14, 24). L.K. confided in Saitta that

there was locked food in the mother’s home, that L.K. excessively cried at home, and that

L.K. wanted to move to California to live with Plaintiff. (Id. at ¶ 24). Saitta provided L.K.

with food but did not report the allegations. (Id.). On July 13, 2023, Plaintiff emailed

1 Plaintiff does not provide the mother’s name in his complaint.

Saitta inquiring whether L.K. had informed her about the abuse, and Saitta confirmed in an

email sent July 17, 2023, that L.K. had made the disclosures. (Id. at ¶¶ 23, 25).

On August 7, 2023 and August 12, 2023, L.K. texted Plaintiff that she was being

forced to attend family therapy to discourage her from moving. (Id. at ¶¶ 26-27). On

September 6, 2023, Plaintiff informed L.K.’s court-appointed attorney of the abuse. (Id. at

¶ 28). September 2023 was the last time that L.K. and Plaintiff had a “healthy and

endearing open communication relationship[.]” (Id. at ¶ 29). That month, Plaintiff and

L.K. spoke on the phone for the last time and on September 16, 2023, L.K. emailed

Plaintiff. (Id.). Later that day, L.K. had her first therapy appointment “scheduled by her

mother, to talk her out of coming to [California]. . . .” (Id.).

On November 14, 2023, the mother emailed District staff requesting denial of

Plaintiff’s access to L.K., claiming that L.K. did not want to see him, and attaching custody

documents, which “contribut[ed] to parental alienation.” (Id. at ¶¶ 30-31). The mother

again emailed custody documents to the District on November 25, 2024. (Id. at ¶ 32).

On December 2, 2024, and December 3, 2024, Plaintiff had an email and phone

exchange with Fairport High School (“FHS”) Assistant Principal Madison Power

(“Power”) in which Plaintiff asserted his constitutional right to access to his children and

his entitlement to pick them up under the joint legal custody agreement. (Id. at ¶ 33).

Plaintiff warned Power that “[a]ny disruption caused by the school or an overreaction to

[his] request to pick up [L.Q.] today will lead to a civil rights lawsuit under 42 U.S.C. §

1983 against the school, the school district, and individuals involved.” (Id. at ¶¶ 33-34).

Power’s response “showed contradictions (e.g. allowed Q.K. but not L.K.), lack of training

in interpreting legal documents (rationale made no sense, ignoring joint custody), and

indicated involvement of children’s court-appointed attorney.” (Id. at ¶ 33).

On December 3, 2024, Plaintiff went to FHS and “attempted a wellness check and

pickup of L.K.,” who was 15 years old at the time. (Id. at ¶ 34). Power informed Plaintiff

via email that he could not take L.K. out of school because maternal permission was

required, and FHS Principal Robert Clark (“Clark”) physically denied Plaintiff entry into

the school. (Id.). Plaintiff tried to film his interaction with Clark, but Clark “explicitly

stated Plaintiff could not film him.” (Id.). Clark “physically obstructed Plaintiff from

entering the school office or summoning L.K. from her classroom, refused to allow Plaintiff

to record the exchange despite it occurring in a public area during official business, and

prevented Plaintiff from speaking freely about his custodial rights. . . .” (Id.).

Although the District “refused police involvement[,]” the Monroe Couty Sheriff’s

Office became involved, and their report stated that “the mother admitted Plaintiff’s pickup

rights, but (L.K.) refused” to go with Plaintiff. (Id.). Clark and Power’s denial of Plaintiff’s

access to L.K. “caused years of non-contact with L.K., as the school was the only place

Plaintiff could pick up the children due to the mother deliberately prohibiting lawful

contact” between Plaintiff and the children. (Id.). The District did not discipline Clark or

Power for their conduct. (Id. at ¶ 33).

During a hearing in family court, the mother testified that Plaintiff had never caused

harm to the children and that he had only been trying to maintain contact with them. (Id.

at ¶ 35). On December 13, 2024, the family court issued a custody order “conflicting with

[the] joint custody terms.” (Id. at ¶ 36).

Plaintiff alleges that as a result of Defendants’ actions, he has suffered from

emotional distress, the loss of a relationship with L.K., financial harm, and the violation of

his fundamental right to a parent-child relationship. (Id. at ¶ 84). He also alleges harm to

the children. (Id.). Plaintiff claims compensatory damages in the amount of $2,000,000

from the District, $250,000 from Clark, and $250,000 from Power. (Id. at ¶ 86). Plaintiff

also seeks punitive damages from Clark and Power. (Id.).

II. Procedural Background

On October 16, 2025, Plaintiff filed a complaint on behalf of himself, L.K. and Q.K.

against the District, Clark, Power, and Saitta. (Dkt. 1). Plaintiff asserted causes of action

under 42 U.S.C. § 1983 for violations of due process under the Fourteenth Amendment,

violations of the Equal Protection Clause, and violations of the First Amendment, and a

cause of action under 42 U.S.C. § 1986 for neglect to prevent a conspiracy to deprive

Plaintiff of equal protection. Plaintiff also asserted state-law claims, including a claim

against the District that it failed to follow District policy, a claim for failure to report

suspected child maltreatment against Saitta and the District, intentional infliction of

emotional distress against Clark, Power, and the District, and negligence against Clark,

Power, and the District.

Defendants filed a motion to dismiss on January 5, 2026. (Dkt. 15). Plaintiff filed

papers in opposition (Dkt. 23), and Defendants replied (Dkt. 25). Plaintiff subsequently

filed a motion for leave to file notice of supplemental authority (Dkt. 20)2 and a motion for

leave to file a sur-reply (Dkt. 27).

DISCUSSION

I. Motion for Leave to File Notice of Supplemental Authority; Motion to File Sur-

Reply

In his motion for leave to file notice of supplemental authority, Plaintiff identifies a

case from the Western District of Texas that, according to him, is directly relevant to

Plaintiff’s claims under 42 U.S.C. § 1983. (Dkt. 20). Plaintiff also seeks to file a sur-reply

in order to respond to “new arguments, material mischaracterizations of the record, and []

unsubstantiated attacks[s]” within Defendants’ reply. (Dkt. 27). Defendants have not filed

any opposition to these motions.

“The general principle is that supplemental filings require leave of the

court.” Neary v. Weichert, 489 F. Supp. 3d 55, 62 (E.D.N.Y. 2020). Ultimately, “whether

to permit the filing of a sur-reply is entirely within the Court’s discretion.” Marseet v.

Rochester Inst. of Tech., No. 20-CV-7096FPG, 2022 WL 2718509, at *1 (W.D.N.Y. July

13, 2022); see Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“A district court

has broad discretion to determine whether to overlook a party’s failure to comply with local

court rules.”), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167

(2009).

2 Although Plaintiff’s motion for leave to file notice of supplemental authority was

received by the Court prior to its receipt of Plaintiff’s response to the motion to dismiss,

the date and postmark of Plaintiff’s opposition papers (January 29, 2026) reflect that his

response was mailed before the motion for leave to file notice of supplemental authority

was submitted.

Here, although Plaintiff’s motions were not in strict compliance with Local Rule of

Civil Procedure 7, Plaintiff sought the Court’s permission before filing these papers and

supplied purportedly valid reasons for why the information was not included in his initial

response to the motion to dismiss, such as that the decision he relies upon was released

only days before his opposition papers were due, and that Defendants raised new arguments

and made misstatements in their reply papers. Particularly in light of Plaintiff’s pro se

status, see Mcgillvary v. Rolling Stone, LLC, No. 25-1599, 2026 WL 946337, at *1 n.1 (2d

Cir. Apr. 8, 2026); Bradshaw v. Piccolo, 772 F. Supp. 3d 331, 341 (W.D.N.Y. 2025), and

the lack of objection from Defendants, the motions are granted. The supplemental

authority (Dkt. 20) will be considered as appropriate, and the Clerk of Court is directed to

file the sur-reply, attached as Exhibit A to Plaintiff’s motion (see Dkt. 27 at 4-26) on the

docket.

II. Motion to Dismiss

A. Rule 12(b)(6) Standard

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund

v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546

(2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted). “To state a

plausible claim, the complaint’s ‘[f]actual allegations must be enough to raise a right to

relief above the speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d

Cir. 2014) (quoting Twombly, 550 U.S. at 555).

In addition, “[i]t is well settled that pro se litigants generally are entitled to a liberal

construction of their pleadings, which should be read ‘to raise the strongest arguments that

they suggest.’” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation omitted).

While the Court is “obliged to construe [pro se] pleadings liberally, particularly when they

allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004),

even pleadings submitted pro se must satisfy the plausibility standard set forth

in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even

after Twombly, though, we remain obligated to construe a pro se complaint liberally.”)

Similarly, a court should generally grant a pro se plaintiff leave to amend “at least

once when a liberal reading of the complaint gives any indication that a valid claim might

be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation

omitted). Nonetheless, leave to amend pleadings is properly denied where amendment

would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Ruffolo v.

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (“Where it appears that granting

leave to amend is unlikely to be productive, however, it is not an abuse of discretion to

deny leave to amend.”).

B. Claims On Behalf of Minor Children

Defendants argue that to the extent Plaintiff is bringing claims on behalf of his minor

children, those claims must be dismissed because a parent proceeding pro se is barred from

filing suit for their minor children. (Dkt. 15-1 at 11; Dkt. 25 at 6). Plaintiff’s response

indicates that he is seeking to bring the causes of action on behalf of L.K. and Q.K. (Dkt.

23 at 21-22).

There is a “well-established general rule in this Circuit that a parent not admitted to

the bar cannot bring an action pro se in federal court on behalf of his or her child.” Tindall

v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005). “Furthermore, the choice to

appear pro se is not a true choice for minors who under state law, cannot determine their

own legal actions.” McFarlane v. Roberta, 891 F. Supp. 2d 275, 283 (D. Conn. 2012)

(citing Cheung v. Youth Orchestra Found., Inc., 906 F.2d 59, 61 (2d Cir. 1990)). It is

undisputed that Plaintiff is proceeding pro se, and his response papers state that he is not

seeking appointment of counsel. (Dkt. 23 at 22). Therefore, even though Plaintiff is the

father of L.K. and Q.K., he is unable to bring claims on their behalf absent legal

representation. Accordingly, the Court dismisses L.K. and Q.K. as parties without leave to

amend because Plaintiff is unable to assert claims on behalf of his minor children given his

pro se status.

C. Section 1983 Claims

Plaintiff asserts several claims pursuant to 42 U.S.C. § 1983. Against all defendants,

Plaintiff alleges a violation of procedural and substantive due process under the Fourteenth

Amendment for violating Plaintiff’s parental rights and interfering with familial

association (Count One and Count Seven against Clark, Power and the District only).

Against Clark, Power, and the District, Plaintiff also alleges discriminatory treatment based

on his parental custodial status under the Equal Protection Clause (Count Two), retaliation

under the First and Fourteenth Amendments (Count Six), and free speech violations under

the First Amendment (Count Ten).

“Section 1983 itself creates no substantive rights; it provides only a procedure for

redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515,

519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). “To

state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing

Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).

i. Individual Defendants’ Liability

Defendants contend that to the extent Plaintiff has sued Clark, Power, and Saitta in

their official capacities, those claims should be dismissed. (Dkt. 15-1 at 25). Inasmuch as

Plaintiff’s complaint does name Clark, Power, and Saitta in their official capacities (see

Dkt. 1 at ¶¶ 12-14), the Court agrees that those claims should be dismissed and the suit

may only proceed against Clark, Power, and Saitta in their individual capacities. See

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all

respects other than name, to be treated as a suit against the entity. It is not a suit against

the official personally, for the real party in interest is the entity.” (quotation modified));

Alger v. Cnty. of Albany, 489 F. Supp. 2d 155, 165 (N.D.N.Y. 2006) (dismissing a “claim

against an individual in her official capacity [as] nothing more than a claim against the

municipality itself”); Baines v. Masiello, 288 F. Supp. 2d 376, 384 (W.D.N.Y. 2003) (“[A]

suit against a municipal officer in his or her official capacity is functionally equivalent to

a suit against the entity of which the officer is an agent.”).

Defendants further contend that the § 1983 claims asserted against Clark, Power,

and Saitta in their individual capacities must also be dismissed because Plaintiff has failed

to allege that any of them violated his constitutional rights. (Dkt. 15-1 at 26; Dkt. 25 at

12). According to Defendants, Plaintiff “engages in group pleading . . . and fails to identify

what actions, if any, these individuals took that deprived him of his constitutional rights.”

(Dkt. 15-1 at 26).

The only claim that the Court believes suffers from deficient allegations of personal

involvement is the Fourteenth Amendment claim against Saitta (Count One). Because that

cause of action is tied to the events that occurred on December 3, 2023, and the complaint

is devoid of allegations of Saitta’s involvement that day, the Court agrees that Count One

must be dismissed against Saitta. But even a cursory review of the complaint reflects that

Plaintiff has otherwise pleaded the personal involvement of each individual defendant for

the claims against them. The crux of Plaintiff’s allegations are that Clark and Power

restricted his access to the school, refused to release L.K. to him, and took that action at

least in part because he informed Power that he would file a civil rights lawsuit against the

District if officials did not allow him to assert his rights under the joint custody agreement.

Those allegations are sufficient to plausibly establish that Clark and Power personally

contributed to the alleged deprivation of Plaintiff’s constitutional rights.

Accordingly, the official capacity claims against Clark, Power, and Saitta are

dismissed, as is the only § 1983 claim as asserted against Saitta (Count One alleging

violation of parental rights claim under the Fourteenth Amendment). Because it is at least

feasible that the failure to plead personal involvement by Saitta could be cured through an

amended pleading, Plaintiff is granted leave to replead Count One as to Saitta (with respect

to the procedural due process claim only, as the substantive due process claim cannot be

cured through better pleading, for the reasons discussed below). The motion to dismiss

based on lack of personal involvement is otherwise denied.

ii. Municipal Liability

Defendants move to dismiss Plaintiff’s § 1983 claims against the District pursuant

to Monell v. New York City Dep’t Soc. Servs., 436 U.S. 658, 690 (1978). Defendants

contend that Plaintiff has failed to identify any custom, policy, or final policymaker

responsible for the alleged actions that violated Plaintiffs’ constitutional rights. (Dkt. 15-

1 at 24-25; Dkt. 25 at 11-12). Plaintiff responds that Clark constitutes a final policymaker

who ratified unconstitutional conduct, and that the District’s failure to train its employees

on joint custody contributed to the unconstitutional conduct. (Dkt. 23 at 40-43).

“[T]o establish municipal liability under § 1983, a plaintiff must prove that ‘action

pursuant to official municipal policy’ caused the alleged constitutional injury.” Cash v.

Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S.

51, 60 (2011)). School districts “are considered municipal entities that can be sued under

§ 1983.” Doe v. E. Irondequoit Cent. Sch. Dist., No. 16-CV-6594 (CJS), 2018 WL

2100605, at *16 (W.D.N.Y. May 7, 2018) (citations omitted). “[T]o hold a [school district]

liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required

to plead and prove three elements: (1) an official policy or custom that (2) causes the

plaintiff to be subjected to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702

F.2d 393, 397 (2d Cir. 1983).

Official municipal policy includes “the decisions of a government’s lawmakers, the

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

practically have the force of law.” Connick, 563 U.S. at 61. To survive a motion to dismiss,

the plaintiff “cannot merely allege the existence of a municipal policy or custom, but must

allege facts tending to support, at least circumstantially, an inference that such a municipal

policy or custom exists.” Triano v. Town of Harrison, 895 F. Supp. 2d 526, 535 (S.D.N.Y.

2012) (quotation modified). A plaintiff may satisfy the “policy or custom” requirement by

alleging one of the following:

(1) a formal policy officially endorsed by the municipality; (2) actions taken

by government officials responsible for establishing the municipal policies

that caused the particular deprivation in question; (3) a practice so consistent

and widespread that, although not expressly authorized, constitutes a custom

or usage of which a supervising policy-maker must have been aware; or (4)

a failure by policymakers to provide adequate training or supervision to

subordinates to such an extent that it amounts to deliberate indifference to

the rights of those who come into contact with the municipal employees.

Brandon v. City of N.Y., 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010) (internal citations

omitted); Hurdle v. Bd. of Educ. of City of N.Y., 113 F. App’x 423, 424-25 (2d Cir.

2004) (“A school district’s liability under Monell may be premised on any of three

theories: (1) that a district employee was acting pursuant to an expressly adopted official

policy; (2) that a district employee was acting pursuant to a longstanding practice or

custom; or (3) that a district employee was acting as a ‘final policymaker.’” (citations

omitted)); see also Dole v. Huntington Union Free Sch. Dist., 699 F. App’x 85, 87 (2d Cir.

2017) (“A school district is a municipal entity, and as such, cannot be held liable pursuant

to § 1983 solely because of the discriminatory actions of one of its employees” but only “if

its ‘policy or custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.’”).

Importantly, “[a] municipality may . . . be liable for even a single unconstitutional

act of an official who has final policy-making authority.” Taylor v. City of N.Y. (Dep’t of

Sanitation), No. 17 CV 1424-LTS-SDA, 2019 WL 3936980, at *5 (S.D.N.Y. Aug. 20,

2019). “If an official’s decision was, at the time it was made, for practical or legal reasons

the municipality’s final decision, then they are a final policymaker.” Id. (alterations and

quotation omitted); see also Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir.

1983) (“A single unlawful discharge, if ordered by a person ‘whose edicts or acts may fairly

be said to represent official policy,’ Monell, 436 U.S. at 694, may support an action against

the municipal corporation. . . . Where an official has final authority over significant matters

involving the exercise of discretion, the choices he makes represent government policy.”);

Barzilay v. City of N.Y., 610 F. Supp. 3d 544, 618 (S.D.N.Y. 2022) (“Because ‘[a]n official

has final authority if his decisions, at the time they are made, for practical or legal reasons

constitute the municipality’s final decisions,’ to determine whether someone has the

requisite policy-making authority, a court must consider ‘proof of the official’s scope of

employment and his role within the municipal or corporate organization.’ . . . Thus,

evidence that an individual ‘held a top level position with [an organization] and had

authority to order’ personnel decisions, along with evidence that the individual’s ‘authority

over personnel decisions was final’ . . . is sufficient to show a municipal policy.” (quoting

Rookard, 710 F.2d at 45)). At the pleading stage, a plaintiff must allege sufficient facts to

support a fair inference for such a conclusion. Taylor, 2019 WL 3936980, at *5; Morizio

v. Town of Oyster Bay, No. CV 14-1241 (LDW) (SIL), 2015 WL 13721649, at *7 (E.D.N.Y.

Apr. 24, 2015) (“Notably, [a]t the pleadings stage, it is sufficient for the complaint to allege

facts suggesting that Defendants may be determined to have final policymaking authority

as a matter of law.” (citation and quotation omitted)).

Plaintiff’s first proffered basis for Monell liability is that Clark is a final policymaker

such that his refusal to allow Plaintiff to enter the school, release L.K. to Plaintiff, and

permit Plaintiff to film their interaction became the District’s official policy on those

subjects. (Dkt. 23 at 40-41). Plaintiff’s theory is belied by Agosto v. N.Y.C. Dep’t of Educ.,

982 F.3d 86 (2d Cir. 2020), in which the Second Circuit dispelled of the notion 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. As clarified in Friend v.

Gasparino, 61 F.4th 77 (2d Cir. 2023), the Court in Agosto “rejected the plaintiff’s

argument that the school principal was the ‘de facto final municipal policymaker on those

specific matters involving’ the plaintiff because ‘[a] municipality’s going along with

discretionary decisions made by its subordinates is not a delegation to them of the authority

to make policy.’” Id. at 94. The court cautioned against erroneously “equating a final

decisionmaker with a final policymaker,” noting that such an approach “would effectively

impose respondeat superior liability—making the municipality liable for the conduct of its

employees—in violation of Monell itself” and “would risk imposing Monell liability for

almost every action a principal takes.” Agosto, 982 F.3d at 100, 101.

Here, Plaintiff’s position suffers from that false equivalency. Plaintiff states in his

opposition papers that “Clark, as Principal, was the final decision-maker for student release

at [FHS][,]” that “[h]is decision to deny Plaintiff access was the District’s policy for that

matter[,]” and that his decision “was not reviewed by any higher authority” and therefore

“[b]ecame the District’s final position on the matter.” (Dkt. 23 at 40). But Plaintiff does

not allege that Clark was empowered with the ability to create policy, nor does he cite legal

authority establishing that a principal of a public high school is instilled with that ability.

Plaintiff does point to numerous District policies that allegedly are relevant to Clark’s

conduct (Dkt. 1 at ¶¶ 45, 53), but “[t]hat [Clark] might possess some amount of discretion

under the [policies] when applying the relevant provided standards, or that [he] might fail

to follow the policy to the letter, does not transform [his] actions into official municipal

policies.” I.S. ex rel. Disla v. Binghamton City Sch. Dist., No. 3:19-CV-0513 (GTS/MJK),

2024 WL 3804110, at *31 (N.D.N.Y. Feb. 1, 2024). While Clark may have been the final

decisionmaker on the questions of whether Plaintiff was permitted to enter the school, L.K.

was able to leave with Plaintiff, and Plaintiff could record in the school, there are no facts

from which this Court could reasonably conclude that Clark had final policymaking

authority over the rules that were to guide those decisions. Indeed, New York Education

Law § 1709(2) delegates to the board of education—not a school principal—the duty to

“establish such rules and regulation concerning the order and discipline of the schools,”

and following the decision in Agosto, courts within the Second Circuit have routinely found

that principals of public schools do not have that policymaking authority. See, e.g.,

Baeringer v. Plainview-Old Bethpage Cent. Sch. Dist., No. 23-cv-03557 (FB) (SIL), 2024

WL 3161814, at *4-5 (E.D.N.Y. June 25, 2024) (dismissing claim against school district

because principal was not a final policymaker for Monell purposes); I.S. ex rel. Disla, 2024

WL 3804110, at *31 (same); Rivera v. Bd. of Educ. of City Sch. Dist. of N.Y.C., No. 19 Civ.

11624 (KPF), 2021 WL 5399437, at *6-8 (S.D.N.Y. Nov. 18, 2021) (same). For these

reasons, Plaintiff has failed to plausibly allege a theory of final policymaker liability against

the District.

The second way by which Plaintiff seeks to establish Monell liability is by alleging

that the District’s failure to train its employe es on joint custody contributed to the

unconstitutional conduct. (Dkt. 1 at ¶¶ 61-62). Plaintiff proffers that the District’s policies

omit any protocol for how its staff should approach parents with joint legal custody and

that the lack of instruction proximately caused the denial of Plaintiff’s rights. (Id.).

“In order for municipal nonfeasance—e.g., the failure to train, to supervise, or to

discipline—to give rise to Monell liability, the alleged municipal failure must ‘amount[ ]

to deliberate indifference to the rights of [the] person with whom the [municipal

employees] come into contact.’” DS ex rel. CS, No. 6:19-CV-6528 EAW, 2022 WL

673119, at *13 (W.D.N.Y. Mar. 7, 2022) (citation omitted). “A pattern of similar

constitutional violations by untrained employees is ordinarily necessary to demonstrate

deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (internal

quotation marks omitted). Only in limited circumstances can a failure to train “certain

employees about their legal duty to avoid violating citizens’ rights . . . rise to the level of

an official government policy for purposes of § 1983.” RF v. S. Country Cent. Sch. Dist.,

No. 13-cv-2710 (SJF)(AKT), 2016 WL 5349782, at *11 (E.D.N.Y. Sept. 23,

2016) (quoting Connick, 563 U.S. at 61).

Plaintiff contends that the case of P.W. v. Fairport Cent. Sch. Dist., 927 F. Supp. 2d

76 (W.D.N.Y. 2013) put the District “on notice of potential civil rights violations” such that

the District’s failure to train its employees constitutes deliberate indifference. (Dkt. 23 at

41; see Dkt. 1 at ¶ 62(a)). The Court is not so persuaded. In that case, the plaintiff sued

the District for inadequately responding to peer-on-peer bullying, alleging violations of

substantive due process, Title IX, and state law. Id. at 78. The Court does not see how a

constitutional violation premised on alleged employee failure to appropriately respond to

student bullying would trigger the District’s duty to train its employees to handle issues

related to joint custody. In any event, the court in P.W. dismissed the plaintiffs’ § 1983

claim, finding that the complaint did not plead a plausible violation of substantive due

process. Id. at 86. Thus, not only was the District not placed on notice of constitutional

violations regarding parental custody by P.W., but the District was not placed on notice of

any constitutional violations at all. Because Plaintiff has not identified any other instances

that would have informed the District of deficiencies in its employees’ conduct, Plaintiff

has not plausibly established deliberate indifference.

Finally, to the extent that any allegations in Plaintiff’s complaint suggest that the

purported conduct was pursuant to a District policy (see Dkt. 1 at ¶ 53 (identifying “the

defective Policy 7270 that omits joint legal custodial parents and led to improper labeling

of Plaintiff as non-custodial . . .”)), they are wholly conclusory and lack any factual

detail. Vasquez v. City of N.Y., No. 20-cv-4641 (ER), 2023 WL 8551715, at *5 (S.D.N.Y.

Dec. 11, 2023) (“Similarly, courts dealing with Monell claims have ‘disregarded’ the use

of ‘conclusory’ allegations that do not provide additional support that a plaintiff’s

experience is consistent with a larger pattern of similar conduct.”).

Because Plaintiff has not established that the District can plausibly be held liable for

the actions alleged in the complaint, all claims asserted against the District pursuant to

§ 1983 are hereby dismissed.3 Consistent with the Court’s obligation to afford a pro se

3 The District additionally contends that any claims for punitive damages asserted

against it pursuant to Plaintiffs’ § 1983 claim must be dismissed. (Dkt. 15-1 at 32-33).

Inasmuch as a school district may not be held liable for punitive damages under § 1983,

see Quackenbush v. Johnson City Sch. Dist., 716 F.2d 141, 148 (2d Cir. 1983) (citing City

of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)), the Court agrees that punitive

damages may not be recovered against the District. But this is a strawman argument

because neither the complaint nor Plaintiff’s response indicate that he is seeking punitive

damages against the District.

plaintiff at least one opportunity to cure deficiencies in pleading, Plaintiff is afforded an

opportunity to file an amended complaint to attempt to plead his § 1983 claims against the

District pursuant to Monell.

iii. First Amendment—Counts Six and Ten

Plaintiff brings multiple claims under the First Amendment. The sixth cause of

action alleges First Amendment retaliation, asserting that Clark and Power retaliated

against Plaintiff by denying Plaintiff access to L.K. on December 3, 2024, because of his

statement that he would file a civil rights lawsuit against the District if he was not permitted

to see L.K. (Dkt. 1 at ¶¶ 67-69). Plaintiff’s tenth cause of action alleges that Clark and

Power “retaliated against Plaintiff for asserting his parental rights” and violated his rights

under the First Amendment “by physically blocking entry to the school office, preventing

Plaintiff from summoning (L.K.) for class, and refusing to allow video recording . . .

chilling Plaintiff’s protected speech.” (Id. at ¶ 81). Defendants move to dismiss Plaintiff’s

claims for violations of the First Amendment, including his claims for retaliation and free

speech violations. (Dkt. 15-1 at 16-21).

a. First Amendment Retaliation

Initially, Defendants contend that any claim under the sixth cause of action alleging

a violation of Plaintiff’s Fourteenth Amendment substantive due process rights must be

dismissed as duplicative of his First Amendment claims. (Dkt. 15-1 at 16-17). “Where a

particular [constitutional] Amendment ‘provides an explicit textual source of constitutional

protection’ against a particular sort of government behavior, ‘that Amendment, not the

more generalized notion of “substantive due process,” must be the guide for analyzing

these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor,

490 U.S. 386, 395 (1989)); Schachtler Stone Prods. LLC v. Town of Marshall, No. 6:21-

CV-001100 (AMN/MJK), 2024 WL 4025862, at *13 (N.D.N.Y. Sept. 3, 2024) (“It is ‘well

established’ that ‘[w]here another provision of the Constitution provides an explicit textual

source of constitutional protection, a court must assess a plaintiff’s claims under that

explicit provision and not the more generalized notion of substantive due process.’”

(quoting Hu v. City of N.Y., 927 F.3d 81, 104 (2d Cir. 2019)). Because Plaintiff’s claims of

retaliation in his sixth cause of action are brought as violations of both the First and

Fourteenth Amendments, the Court agrees with Defendants that Plaintiff’s Fourteenth-

Amendment claims are subsumed by his claims of First Amendment retaliation and warrant

dismissal. See Collins v. Putt, 979 F.3d 128, 136 (2d Cir. 2020) (plaintiff’s substantive due

process claim subsumed by the alleged First Amendment violations); see also Velez v. Levy,

401 F.3d 75, 94 (2d Cir. 2005) (same); Brown v. Wagner, No. 12-CV-736S, 2014 WL

234821, at *6 (W.D.N.Y. Jan. 22, 2014) (“Because the remaining claims sound in the First

Amendment . . . [plaintiff’s] substantive due process claim . . . must be dismissed.”).

To state a First Amendment retaliation claim in the context of a private citizen, a

plaintiff must plausibly allege: “(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 v. Cnty. of Nassau, 732

F.3d 157, 160 (2d Cir. 2013).

On the first element, Defendants contend that Plaintiff has failed to demonstrate that

he participated in constitutionally protected speech or activity by sending an email to Power

asserting his custody rights, demanding access to L.K., and warning that he would file a

civil rights lawsuit if the District deprived him of his right to access his child. (Dkt. 15-1

at 17-18). The Court disagrees. “The rights to complain to public officials and to seek

administrative and judicial relief are protected by the First Amendment.” Gagliardi v. Vill.

of Pawling, 18 F.3d 188, 194 (2d Cir. 1994). In fact, “[t]he Supreme Court has described

the right to petition government for redress of grievances as ‘among the most precious of

the liberties safeguarded by the Bill of Rights.’” Franco v. Kelly, 854 F.2d 584, 589 (2d

Cir. 1988) (quoting United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S.

217, 222 (1967)). And as Plaintiff cites in his complaint and opposition papers, the

Supreme Court has held that “[t]he right of access to courts for redress of wrongs is an

aspect of the First Amendment right to petition the government.” Borough of Duryea v.

Guarnieri, 564 U.S. 379, 387 (2011). Based on the clear guidance that the commencement

of a lawsuit is a constitutionally protected activity under the First Amendment, the Court

is not prepared to state that as a matter of law, a statement of intent to exercise that right

and petition the government for redress of an alleged constitutional violation by public

school employees does not plausibly meet that standard.

Second, “[a] plaintiff can establish a causal connection that suggests retaliation by

showing that protected activity was close in time to the adverse action.” Espinal v. Goord,

558 F.3d 119, 129 (2d Cir. 2009) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,

273-74 (2001)). To the extent that Defendants contend that Plaintiff has failed to plausibly

allege that he was barred from the school as a result of his email, the fact that the email

was sent either on the same day or the day before he attempted to enter the school is

sufficient to plausibly establish a causal connection between the protected activity and the

adverse action. See Mateo v. Fischer, 682 F. Supp. 2d 423, 435 (S.D.N.Y. 2010) (denying

motion to dismiss where the plaintiff alleged adverse action was taken one dater after he

engaged in protected activity).

Third, Defendants submit that Plaintiff has not sufficiently alleged that he was

subjected to an adverse action resulting in the chilling of his speech. Contrary to that

position, the Second Circuit clarified in Dorsett that silencing of the plaintiff’s speech is a

sufficient but not necessary injury to establish a plausible claim for First Amendment

retaliation. 732 F.3d at 160 (“Chilled speech is not the sine qua non of a First Amendment

claim.”). Rather, “[a] plaintiff has standing if he can show either that his speech has been

adversely affected by the government retaliation or that he has suffered some other concrete

harm.” Id. So long as a plaintiff can plausibly demonstrate that “defendant’s actions

caused him some injury,” including “[v]arious non-speech related harms,” the injury

requirement is satisfied to withstand a motion to dismiss. Id. (noting that a loss of a

government contract, additional scrutiny at border crossings, revocation of building

permits, and refusal to enforce zoning laws are all adequate cognizable harms). Here,

Plaintiff alleges that as a result of his email, Clark and Power refused him access to his

child despite his “documented custody rights.” The purported deprivation of a parent’s

legal access to their child plausibly establishes an injury sufficient to establish a non-speech

related harm. See Kennedy v. Caruso, No. 3:19-cv-260(VLB), 2021 WL 5415262, at *18

(D. Conn. Nov. 19, 2021) (identifying a parent’s inability to obtain their children when the

parent has a right to do so as a potential concrete harm); see generally Doe v. City of N.Y.,

No. 18-cv-670 (ARR) (JO), 2018 WL 3824133, at *13 (E.D.N.Y. Aug. 9, 2018) (“[T]he

Second Circuit now requires private citizens raising First Amendment claims to show only

a concrete harm sufficient to constitute an ‘injury in fact’ sufficient for standing.”).

The motion to dismiss Plaintiff’s First Amendment retaliation claim against Clark

and Power as alleged in Counts One and Ten is therefore denied.

b. Free Speech Violation

Plaintiff alleges that Clark and Power engaged in a violation of his rights under the

First Amendment by blocking his entry to the school and refusing to allow Plaintiff to

record. Defendants maintain that in both respects, Plaintiff fails to plead an interest

protected by the First Amendment. (Dkt. 15-1 at 19-21; Dkt. 25 at 10).

The Court agrees with Defendants that Plaintiff’s claim for a violation premised on

Clark and Power’s restriction on his ability to be within the school is deficient because it

does not implicate a protected right. The Second Circuit has rejected the notion that a

parent has an unlimited right of access to school property and explicitly stated that “a

school principal has ‘the authority . . . and responsibility for assuring that parents and third

parties conduct themselves appropriately while on school property’ and that they do not

engage in disruptive or ‘threatening conduct that disturbs the tranquility of schools.’”

Johnson v. Perry, 859 F.3d 156, 172-73 (2d Cir. 2017) (quoting Lovern v. Edwards, 190

F.3d 648, 655 (4th Cir. 1999)); see Jones v. Bay Shore Free Sch. Dist., 666 F. App’x 92, 94

(2d Cir. 2016) (“[The parent] concedes on appeal that he has no protected right to access

school property.”). The extent to which the Second Circuit has recognized a right to access

school property is confined to presence at events open to the public, see Johnson, 859 F.3d

at 175 (“[T]he school may regulate access to its gymnasium when it is being used as a

limited public forum only if its restrictions are reasonable and viewpoint-neutral.”); see

also Frierson v. Reinisch, 806 F. App’x 54, 58 (2d Cir. 2020), but the allegations in the

complaint do not fall within that scenario. Accordingly, Plaintiff has not plausibly

established that a First Amendment violation occurred from refusing his access to the

school building.4

Similarly, the Court concludes that Plaintiff has not plausibly asserted a protected

activity by relying on the allegation that he was video recording within the school. Whether

a private person has a right under the First Amendment to take a video of a school official

within a public school appears to be a matter of first impression in this Circuit. The

discourse regarding the public’s right to take video recordings of state officials has thus far

primarily centered around whether the First Amendment affords protection for recording

law enforcement. See, e.g., Charles v. City of N.Y., No. 12-CV-6180 (SLT) (SMG), 2017

WL 530460, at *17-19 (E.D.N.Y. Feb. 8, 2017) (plaintiff alleged she was arrested because

of her video recording of police officers interacting with teens on a public street); see e.g.

Basinski v. City of N.Y., 192 F. Supp. 3d 360, 367-68 (S.D.N.Y. 2016) (plaintiff was

recording a police officer interacting with a street vendor on a public sidewalk);

Higginbotham v. City of N.Y., 105 F. Supp. 3d 369, 379-80 (S.D.N.Y. 2015) (plaintiff

arrested after recording violent police arrest on public street). Although the vast majority

4 For the same reasons, insofar as Plaintiff alleges a violation of due process resulting

from the denial of his access to the school (Dkt. 1 at ¶¶ 52-57), Defendants’ motion to

dismiss that claim (Dkt. 15-1 at 12) is granted.

of district courts in the Circuit—and several Courts of Appeals across the country—have

determined that the First Amendment encompasses that activity, the Second Circuit has

“yet to recognize[] a First Amendment right to record law enforcement activities.” Reyes

v. City of N.Y., 141 F.4th 55, 72 n.16 (2d Cir. 2025); see also Charles, 2017 WL 530460, at

*21-22 (noting that the First, Seventh, Ninth, and Eleventh Circuits “have either held or

implied that a right to film police activity exists, at least under some circumstances”);

Irizarry v. Yehia, 38 F.4th 1282, 1289-1292 (10th Cir. 2022) (“[W]e conclude there is a

First Amendment right to film the police performing their duties in public.”).

It is no surprise then that the Second Circuit has also not addressed whether the First

Amendment protects the act of recording school officials in a public school. It appears that

only the First Circuit has. In Pitta v. Medeiros, 90 F.4th 11 (1st Cir. 2024), the First Circuit

analyzed whether a parent who was denied his request to video record a meeting with

school district employees to discuss the individualized educational program (“IEP”) of his

child had stated a plausible claim for a violation of his rights under the First Amendment.

In arguing that he was exercising a First Amendment right, the parent relied on cases from

the First Circuit that recognized the right to video and audio record police officers

discharging their official duties in public space. Id. at 17-20 (citing Project Veritas Action

Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014);

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir.

1999)). The First Circuit rejected the proposition that those cases established “a First

Amendment right to record exists whenever ‘public officials’ are operating in ‘public

spaces[,]’” finding that such an argument “ignore[d] limitations imposed both explicitly

and implicitly by these cases.” Id. at 20. The court distinguished those cases on numerous

grounds, including that the IEP meeting did not take place in a space open to the public,

attendance at the meeting was limited to the parent and members of the student’s IEP team,

the topics discussed at the meeting involved personal and sensitive information, and each

cited case was specific to one type of public official: police officers. Id. at 22.

Despite the apparent differences between Pitta and the facts at hand, the Court

nonetheless finds that the First Circuit’s reasoning relevant and it warrants the same result

here for several reasons. First, public schools are characterized as non-public forums

unless they have opened their facilities to public use. See Peck v. Baldwinville Cent. Sch.

Dist., 426 F.3d 617, 626-27 (2d Cir. 2005); Silano v. Sag Harbor Union Free Sch. Dist. Bd.

of Educ., 42 F.3d 719, 723-24 (2d Cir. 1994); Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 45-46 (1983). As such, entering FHS during school hours when there

is no allegation of an ongoing public event is not analogous to being present on a public

street or sidewalk for the purpose of establishing that the video recording occurred in

public. Those differences make the Court unconvinced that Clark and Power can be fairly

characterized as having been performing their duties in public.

Second, even though school officials qualify as state actors with regard to being

bound by the First Amendment, see N.J. v. T.L.O., 469 U.S. 325, 336 (1985) (“We have

held school officials subject to the commands of the First Amendment,”); see Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969) (“[T]he Court has repeatedly

emphasized the need for affirming the comprehensive authority of the States and school

officials, consistent with the fundamental constitutional safeguards, to prescribe and

control conduct in the schools.”), the Court is unpersuaded by the application of such a

broad definition of “public official” in this context. See Project Veritas Action Fund, 982

F.3d at 843 (rejecting the position that “government official” is properly defined as any

“civil servant” or “public employee”, comparing “a restriction on the recording of a

mayor’s speech in a public park” with “a restriction on the recording of a grammar school

teacher interacting with her students in that same locale.”).

Third, the First Amendment principles that have guided courts to the conclusion that

recording police activity is a constitutionally protected action are not present here. See,

e.g., Pitta, 90 F.4th at 22-23 (“Our cases have repeatedly framed the right to record public

information as linked to the right of the public to receive this information.”);

Higginbotham, 105 F. Supp. 3d at 379 (“There is practically universal agreement that a

major purpose of the First Amendment was to protect the free discussion of governmental

affairs. Relatedly, the dissemination of information relating to alleged governmental

misconduct lies at the core of the First Amendment. The videotaping of police officers in

the performance of their duties in public plainly furthers these First Amendment goals.”

(citation modified) (internal citations omitted)). In other words, although the Court has no

doubt that the information was important to Plaintiff personally, there is no identifiable

public interest in Plaintiff’s interaction with school officials, particularly related to his

personal custody dispute.

In light of the lack of guidance from the Second Circuit regarding the extent to

which it would choose to recognize a First Amendment right to record any public officials

acting in their official capacities, the Court is especially hesitant to expand that right

beyond what any other Circuit Court of Appeals has recognized. The Court concurs with

Defendants that Plaintiff has failed to plead a right protected under the First Amendment,

and Plaintiff’s claims for a free-speech violation are dismissed. Because the deficiencies

with this claim cannot be cured through better pleading for the legal reasons discussed

above, the Court declines to grant Plaintiff leave to amend.5

iv. Fourteenth Amendment—Counts One, Two and Seven

Plaintiff’s first and seventh causes of action are claims under the Fourteenth

Amendment for violations of procedural and substantive due process. Plaintiff alleges that

his fundamental right of familial association was violated when Clark and Power refused

his access to L.K., and that his access to L.K. was revoked without due process. (Dkt. 1 at

¶¶ 53, 71). Plaintiff’s second cause of action asserts a violation of the Equal Protection

Clause in which Plaintiff alleges that by refusing to allow Plaintiff to take L.K. out of

school, Clark and Power unlawfully treated Plaintiff differently from L.K’s mother. (Id. at

¶ 59).

a. Procedural Due Process

Defendants seek dismissal of the procedural due process claim on several grounds,

including that Plaintiff’s allegation that he was deprived of his interest in familial

5 Even if the Court found that Plaintiff had plausibly established a violation of free

speech based on Clark’s directive to stop video recording, Defendants would likely be

entitled to qualified immunity on this count. See Vazquez v. Cruz, No. 5:24-CV-164, 2026

WL 852943, at *6-7 (S.D. Tex. Mar. 26, 2026) (finding that a school superintendent would

be entitled to qualified immunity on claim that he retaliated against a parent for exercising

his right to record because “there is not a clearly established right to record school

officials to record school officials at Board meetings free from restrictions on the manner

or location of recording or recording employees on district-owned property.”).

association is a matter of substantive due process, not procedure; Plaintiff has not identified

a protected liberty interest; and Plaintiff has failed to allege that he was deprived of custody

over L.K. (Dkt. 15-1 at 11-13; Dkt. 25 at 6).

“[P]arents have ‘a constitutionally protected liberty interest in the care, custody, and

management of their children.’” Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000)

(quoting Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999)). “‘As a general rule

. . . before parents may be deprived of the care, custody, or management of their children

without their consent, due process—ordinarily a court proceeding resulting in an order

permitting removal—must be accorded to them.’” Southerland v. City of N.Y., 680 F.3d

127, 149 (2d Cir. 2012) (quoting Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003)).

Thus, inasmuch as it is readily apparent that Plaintiff has a protected liberty interest in the

custody of L.K. that cannot be taken away without due process, the Court finds Defendants’

first and second grounds for dismissal wholly without merit.

In addition, the Court is unpersuaded by Defendants’ position that dismissal of this

claim is warranted because Plaintiff “has not—nor could he—allege[] that he was deprived

of custody over L.K. because of the December 3, 2024 incident.” (Dkt. 15-1 at 13). To

the contrary, the complaint alleges that despite the school’s knowledge that Plaintiff had

joint legal custody over L.K. and the corresponding right to pick L.K. up from school, the

school nonetheless refused to release L.K. to him. (Dkt. 1 at ¶¶ 31-34). The Court views

those allegations sufficient to plausibly establish that Clark and Power deprived Plaintiff

of custody over L.K. without due process, at least temporarily. The cases cited by

Defendants, see K.D. v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 215-16 (S.D.N.Y.

2013) (dismissing procedural due process claim because the in-school interview of

a minor child without parental consent did not violate the parents’ liberty interest); Phillips

v. Cnty. of Orange, 894 F. Supp. 2d 345, 375-76 (S.D.N.Y. 2012) (noting that “a physical

removal of the child—even for a short duration—might be sufficient to implicate the

parents’ liberty interest in the child’s care, custody, and management for a procedural due

process claim”), do not compel a different result. And Defendants repeatedly ignore

Plaintiff’s allegation that the denial of access to L.K. on December 3, 2024 “caused years

of non-contact with (L.K.), as the school was the only place Plaintiff could pick up the

children due to the mother deliberately prohibiting lawful contact.” (Dkt. 1 at ¶ 34). At

this stage in the proceeding in which the Court must take the facts in the complaint as true

and afford Plaintiff every reasonable inference, Plaintiff has therefore pleaded sufficient

facts to establish a plausible procedural due process violation.

b. Substantive Due Process

Defendants allege that Plaintiff has failed to plausibly plead a substantive due

process violation because “the refusal to permit Plaintiff to remove L.K. from school

against her wishes cannot possibly be deemed to be arbitrary or so egregious as to shock

the conscience” because “[s]uch temporary deprivations do not result in the parents’

wholesale relinquishment of their right to rear their children, so they are not

constitutionally outrageous or conscience shocking.” (Dkt. 15-1 at 14 (citing Cox v.

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

“Substantive due process protects individuals against government action that is

arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against

government action that is ‘incorrect or ill-advised.’” Lowrance v. Achtyl, 20 F.3d 529, 537

(2d Cir. 1994) (quotation modified). “To establish a violation of substantive due process

rights, a plaintiff must demonstrate that the state action was ‘so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience.’” Okin v. Village of

Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). “The interference with the plaintiff’s

protected right must be so shocking, arbitrary, and egregious that the Due Process Clause

would not countenance it even were it accompanied by full procedural protection.”

Southerland, 680 F.3d at 152 (quotation modified).

Here, the Court concurs with Defendants that Plaintiff has not pleaded facts

indicating that Clark and Power engaged in conscience-shocking conduct. As the Second

Circuit stated in Cox, “[a]bsent truly extraordinary circumstances, a brief deprivation of

custody is insufficient to state a substantive due process custody claim” because it does not

cause a total deprivation of a parent’s protected liberty interest in raising their child. 654

F.3d at 275. Moreover, had due process been accorded—i.e., a family court determination

withholding custody of L.K. from Plaintiff—then Clark and Power’s conduct would have

been in full accordance with the law. See Southerland, 680 F.3d at 152 (“In the child-

removal context, we ask whether the removal would have been prohibited by the

Constitution even had the plaintiffs been given all the procedural protections to which they

were entitled.” (quotation modified) (quoting Tenenbaum, 193 F.3d at 600)). Because

Plaintiff has failed to plausibly establish that Clark or Power engaged in shocking or

egregious conduct, he has not pleaded a viable cause of action for violation of substantive

due process. This claim is dismissed without leave to amend because any amendment

would be futile. In other words, better pleading will not cure the deficiencies with this

claim as discussed above.

c. Equal Protection Clause

Defendants contend that Plaintiff has failed to state an Equal Protection claim

because the complaint provides no examples of similarly situated individuals who were

treated differently. (Dkt. 15-3 at 15-16; Dkt. 25 at 7-9).

The Equal Protection Clause of the United States Constitution mandates equal

protection under the law, and that similarly situated persons are treated equally. “To

establish an Equal Protection claim, a plaintiff must show that he was treated differently

than other persons who were similarly situated and that such differential treatment was

either without a rational basis (a class of one claim) or was motivated by an intent to

discriminate on an impermissible basis (a selective enforcement claim).” Richard v.

Dignean, No. 6:11-CV-06013 EAW, 2023 WL 2480585, at *4 (W.D.N.Y. Mar. 13, 2023)

(quotation modified).

To prevail on a selective enforcement equal protection claim, “a plaintiff must prove

that: (1) he was treated differently from similarly situated individuals and (2) that the

difference in or discriminatory treatment was based on ‘impermissible considerations such

as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious

or bad faith intent to injure a person.’” Burton v. Salerno, No. 3:20-CV-1926 (VAB), 2023

WL 184238, at *15 (D. Conn. Jan. 13, 2023) (quoting Diesel v. Town of Lewisboro, 232

F.3d 92, 103 (2d Cir. 2000)). In order to satisfy the first prong of a selective enforcement

claim, Plaintiffs must identify comparators who are “similarly situated in all material

respects.” Hu, 927 F.3d at 96 (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d

Cir. 2000)). Although the standard does not require Plaintiffs and the comparators to be

identical, their “circumstances must bear a reasonably close resemblance.” Id. (quoting

Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)).

To state a plausible Equal Protection claim under a class of one theory, Plaintiff must

allege (1) “that [he] has been intentionally treated differently from others similarly

situated” and (2) “that there is no rational basis for the difference in treatment.” Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). “[I]n order to succeed on a ‘class of one’

claim, the level of similarity between plaintiffs and the persons with whom they compare

themselves must be extremely high. More precisely, a plaintiff must establish that he and

a comparator are ‘prima facie identical’ by showing 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 defendant acted on the basis of a mistake.’ Hu, 927 F.3d at 92 (quoting

Nielson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005)).

Because Plaintiff appears to be pursuing both a class of one and selective

enforcement claim (see Dkt. 1 at ¶ 59), the Court will consider whether he has alleged

sufficient comparators under both standards. Plaintiff clearly alleges that Clark and Power

treated the mother more favorably because they have continuously let her take L.K. out of

school without issue. In that sense, Plaintiff alleges that the mother is an adequate

comparator. But the allegations of the complaint reflect that the mother is not the same as

Plaintiff in all material respects because Plaintiff himself alleges that she has sole physical

custody of L.K. (Dkt. 1 at ¶ 17). As such, there is a clear distinction between Plaintiff and

the mother that easily accounts for the school being more lenient with releasing L.K. to

her—L.K. lives with the mother full-time. Because the crux of at least one of the theories

underlying Plaintiff’s Equal Protection claim is that he is being discriminated against

despite having the same custodial status as the mother, the fact that he has pleaded a

discernible difference in custody status between him and the mother is fatal to his attempt

to establish an adequate comparator even under the lesser standard in a selective

enforcement claim.

Plaintiff also points to the mother’s domestic partner Joshua Stern (“Stern”) as a

similarly situated individual, alleging that the mother and Stern “were freely allowed to

pick up the children. . . .” (Dkt. 1 at ¶ 34). However, Plaintiff does not plead any facts

establishing that he and Stern are “prima facie identical” or “similar in all material

respects” —in fact, the complaint is devoid of almost any information about Stern—which

is insufficient to establish Stern as a proper comparator. Insofar as Plaintiff pleads that

“other custodial parents” who have not been denied access to their children may serve as

adequate comparators (Dkt. 1 at ¶ 59), that bald assertion is insufficient to plausibly

establish the existence of similarly situated individuals who were treated differently by

Clark and Power.

Although courts are “cautioned against deciding whether two comparators are

similarly situated on a motion to dismiss,” Hu, 927 F.3d at 97, a general allegation that

Plaintiffs were treated differently from those similarly situated is not enough to survive a

motion to dismiss, Rushton v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.

2010). To allow an equal protection claim to proceed based on the vague, wholly

conclusory allegation of similarly situated comparators like the one in Plaintiff’s complaint

would strip away the plausibility standard required by Iqbal and Twombly. Because

Plaintiff has failed to provide more than a general allegation of comparators, his equal

protection claim is dismissed. While the Court is skeptical that these deficiencies can be

fixed with better pleading, it will nonetheless afford Plaintiff an opportunity to attempt to

do so and thus grants leave to amend.

v. Qualified Immunity

With two § 1983 claims withstanding dismissal—the First Amendment retaliation

claim and procedural due process claim—the Court must consider the argument by

Defendants that Clark and Power are entitled to qualified immunity. (Dkt. 15-1 at 27-28).

“A qualified immunity defense is established if (a) the defendant’s action did not violate

clearly established law, or (b) it was objectively reasonable for the defendant to believe

that his action did not violate such law.” Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir.

1998) (citation omitted). Although claims of qualified immunity “should be decided as

early as possible in a case,” it “is often best decided on a motion for summary judgment

when the details of the alleged deprivations are more fully developed.” Walker v. Schult,

717 F.3d 119, 130 (2d Cir. 2013); see also McKenna v. Wright, 386 F.3d 432, 435-36 (2d

Cir. 2004) (noting that generally “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”) (alteration in original) (quoting Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir.

1983)). Therefore, “a defendant asserting a qualified immunity defense on a motion to

dismiss ‘faces a formidable hurdle . . . and is usually not successful.’” Barnett v. Mt.

Vernon Police Dep’t, 523 F. App’x 811, 813 (2d Cir. 2013) (quoting Field Day, LLC v. Cnty.

of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006)). “The defense will succeed only where

entitlement to qualified immunity can be established ‘based [solely] on facts appearing on

the face of the complaint.’” Id. (quoting McKenna, 386 F.3d at 436).

Granting a qualified immunity defense is not appropriate at this juncture. It is

clearly established law that Plaintiff is entitled to petition the government for redress of a

violation of his constitutional rights and that he shall not be deprived of custody of his

children without due process of law. Similarly, qualified immunity requires a finding of

objective reasonableness, which cannot be discerned based on the limited factual record

here that does not include, for example, the exact language Plaintiff used in his email to

Power, the extent of communications between the mother and school officials, and what

Clark and Power communicated to Plaintiff. Taking Plaintiff's allegations as true, the Court

cannot conclude that the actions of Clark and Power did not violate clearly established law,

or that it was objectively reasonable for them to believe their actions did not violate clearly

established law. See Cole-Hatchard v. Hoehmann, No. 16 CV 5900 (VB), 2020 WL

5645815, at *12 (S.D.N.Y. Sept. 21, 2020) (“Moreover, the record evidence demonstrates

material issues of fact, which preclude at this stage of the proceedings a determination that

it was objectively reasonable for defendants to have participated in the allegedly retaliatory

complained-of conduct.”); Jackson v. New York State, 381 F. Supp. 2d 80, 91 (N.D.N.Y.

2005) (“Plaintiff alleges violations of her constitutional rights and, based on the complaint

alone, it does not appear that defendants’ actions were objectively reasonable. Further

factual information is necessary, therefore, to determine whether defendants are entitled

to qualified immunity.”). Defendants’ motion to dismiss Plaintiff’s claims on grounds of

qualified immunity is denied.

D. Section 1986 Claim—Count Eight

Plaintiff’s eighth cause of action is a claim for neglect to prevent conspiracy with

civil rights pursuant to 42 U.S.C. § 1986 against all Defendants. Plaintiff alleges that

Defendants were aware of a conspiracy to deprive him of equal protection under the law

but did not take action to prevent that from occurring. (Dkt. 1 at ¶¶ 72-74(a)). Defendants

contend that because Plaintiff has failed to plead a viable claim under 42 U.S.C. § 1985

that his § 1986 can be premised upon, his § 1986 claim must be dismissed. (Dkt. 15-1 at

22-24).

“[Section] 1986 provides a cause of action against anyone who ‘having knowledge

that any of the wrongs conspired to be done and mentioned in section 1985 are about to be

committed and having power to prevent or aid, neglects to do so.’” Mian v. Donaldson,

Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (citations omitted). “Thus,

a § 1986 claim must be predicated upon a valid § 1985 claim.” Id. (citing Dacey v. Dorsey,

568 F.2d 275, 277 (2d Cir. 1978)); see also Mione v. McGrath, 435 F. Supp. 2d 266, 272

(S.D.N.Y. 2006) (“[F]ailure to state a claim under Section 1985 is fatal to [a] Section 1986

claim.”). Defendants are therefore correct that in order for Plaintiff’s § 1986 claim to

proceed, he must state a plausible claim under § 1985.

Although Plaintiff does not explicitly plead a cause of action under § 1985, the Court

agrees with Defendants that based on the reading of the complaint, the only subsection by

which Plaintiff has an arguable claim is § 1985(3). “In order to state a conspiracy claim

under 42 U.S.C. § 1985(3), a plaintiff must show: (1) a conspiracy; (2) for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal protection

of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance

of the conspiracy; (4) whereby a person is either injured in his person or property or

deprived of any right or privilege of a citizen of the United States.” Cine SK8, Inc. v. Town

of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (citing Britt v. Garcia, 457 F.3d 264, 270

n.4 (2d Cir. 2006)). “A § 1985(3) ‘conspiracy must also be motivated by some racial or

perhaps otherwise class-based, invidious discriminatory animus behind the conspirators’

action.’” Id. (quoting Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)).

Here, Plaintiff has not stated a plausible claim under § 1985(3) because he has not

pleaded facts from which the Court could reasonably conclude that Defendants’ actions

were motivated by class-based animus. Although Plaintiff alleges that he experienced

“textbook sex discrimination” because of the District’s alleged agreement to abide by the

mother’s request to exclude Plaintiff (Dkt. 23 at 37), Plaintiff “fails to allege any facts

showing he was treated differently due to his membership in a protected class,” Klein v.

Zugabie, No. 15 CIV. 9093 (NSR), 2017 WL 374733, at *8 n.12 (S.D.N.Y. Jan. 24, 2017).

In other words, the complaint is devoid of allegations supporting the notion that Plaintiff’s

gender played any role in the District’s decision not to release L.K. to him—to the contrary,

the complaint states that L.K. refused to leave with Plaintiff (Dkt. 1 at ¶ 34). And in any

event, Plaintiff’s claim is belied by his own allegations that Stern—a male—was permitted

to take L.K. out of school. Accordingly, Plaintiff “only offers conclusory allegations that

the actions involved discriminatory animus” that are insufficient to plausibly establish a

claim pursuant to § 1985(3). Hollman v. Cnty. of Suffolk, No. 06-CV-3589 (JFB)(ARL),

2011 WL 2446428, at *11 (E.D.N.Y. June 15, 2011); see also Grant v. City of Syracuse,

No. 5:15-CV-445 (LEK/TWD), 2017 WL 5564605, at *9 (N.D.N.Y. Nov. 17, 2017)

(“Alonzo’s argument in support of his conspiracy claim consists of conclusory statements

that the Arresting Officers’ alleged misconduct can only be explained by implicit racial

bias. While it is undisputed that Alonzo is African-American, conclusory statements

linking officers’ actions to race are insufficient to survive summary judgment.” (citation

omitted)).

Because the Court has found that Plaintiff’s § 1985(3) claim is not sufficient to

withstand the motion to dismiss, Defendants are correspondingly correct that there is no

claim for an underlying conspiracy that Plaintiff’s § 1986 claim may rely upon.

Defendants’ motion to dismiss Plaintiff’s § 1986 claim is granted. Although the Court is

skeptical as to Plaintiff’s ability to assert such a claim under the circumstances here, it will

nonetheless afford Plaintiff leave to amend given his pro se status.

E. State Law Claims

i. Failure to Report Suspected Child Abuse—Count Four

Plaintiff alleges that Saitta’s failure to report L.K.’s disclosure regarding lack of

access to food at the mother’s house and “coercion via therapy as emotional

maltreatment/alienation” was a violation of New York Social Services Law § 413. (Dkt. 1

at ¶¶ 63-64). Defendants move to dismiss based on procedural deficiencies including that

Plaintiff did not comply with New York’s notice of claim requirements by failing to name

Saitta as a potential defendant and filing a notice of claim outside the applicable time limits.

(Dkt. 15-1 at 28-29). On the merits, Defendants contend that dismissal is warranted

because Plaintiff has not alleged that Saitta’s failure to report was knowing and willful.

(Id. at 29-30).

Under New York Social Services Law, “teachers and school administrators [are]

legally obligated to report suspected child abuse and neglect.” Oglesby v. Eikszta, 499 F.

App’x 57, 60 (2d Cir. 2012) (citing N.Y. Soc. Serv. Law § 413(a)). “A private right of

action for money damages may lie against a teacher who fails to report in accordance

with § 413.” S. Country Cent. Sch. Dist., 2016 WL 5349782, at *13 (quoting N.Y. Soc.

Serv. Law § 420(2)).

“In federal court, state notice-of-claim statutes apply to state-law claims.” Tyrrell

v. Seaford Union Free Sch. Dist., 792 F. Supp. 2d 601, 634-35 (quoting Parise v. N.Y.C.

Dep’t of Sanitation, 306 F. App’x 695, 697 (2d Cir. 2009)). “Under New York Education

Law Section 3813(2) and New York General Municipal Law Section 50-e(1), a plaintiff is

required to file a notice of claim with respect to [his] state law claims against defendants

within ninety (90) days of the accrual of those claims as a condition precedent to bringing

a personal injury action against defendants.” S. Country Cent. Sch. Dist., 2016 WL

5349782, at *13 (quoting Tyrrell, 792 F. Supp. 2d at 635 (quotation modified)); see Carlson

v. Geneva City Sch. Dist., 679 F. Supp. 2d 355, 368 (W.D.N.Y. 2010) (“Section 50-e further

directs that such notice must be served ‘within ninety days after the claim

arises.’”). “According to the New York Court of Appeals, the primary purpose of this pre-

litigation notice statute is to put municipal officials ‘in a position to investigate the facts as

to time and place, and decide whether the case is one for settlement or litigation.’” Id.

(quoting Rosenbaum v. City of N.Y., 8 N.Y.3d 1, 11 (2006)). “Notice of claim requirements

are strictly construed by New York state courts and a failure to comply with those

requirements ordinarily requires dismissal of the state law claims.” Tyrrell, 792 F. Supp.

2d at 636 (citing Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999)).

“[A]n untimely Notice of Claim served without leave of the court is deemed a nullity.”

Walker v. Vill. of Freeport, No. 15CV4646JFBSIL, 2016 WL 4133137, at *12 (E.D.N.Y.

June 13, 2016), report and recommendation adopted, No. 15CV4646JFBSIL, 2016 WL

4132252 (E.D.N.Y. Aug. 2, 2016).

Here, Plaintiff’s allegations reflect that his notice claim did not comply with the

mandates of New York Education Law Section 3813(2) and New York General Municipal

Law Section 50-e(1). Plaintiff pleads that on July 17, 2023, Saitta emailed Plaintiff

confirming that L.K. had confided in her about “suspected mistreatment” in the mother’s

home. (Dkt. 1 at ¶¶ 23-25). Plaintiff later pleads that he served “the first notice of claim”

on January 30, 2025—over 18 months after Plaintiff alleges Saitta failed to report the

suspected child abuse or neglect. Thus, by Plaintiff’s own admission, he failed to timely

comply with the strict notice of claim requirements mandated by New York. Plaintiff seeks

to remedy that deficiency by proffering that “state notice-of-claim statutes cannot defeat or

condition federal civil rights claims[,]” (Dkt. 23 at 19), and that is a true statement of law.

Nevertheless, Plaintiff’s point is unpersuasive as this specific cause of action alleges a

violation of state law and is not a federal civil rights claim. In light of Plaintiff’s failure to

adhere to New York’s notice requirements, this claim must be dismissed without prejudice

but without leave to amend.6 See S. Country Cent. Sch. Dist., 2016 WL 5349782, at *13

(dismissing claim under N.Y. Soc. Serv. Law § 413 because of a procedural deficiency in

notice of claim).

ii. Intentional Infliction of Emotional Distress—Count Five

Plaintiff next asserts a claim for intentional infliction of emotional distress against

the District, Clark, and Power for their “deliberate denial of access, despite joint custody,

and failure to report maltreatment,” which “constituted extreme and outrageous

conduct. . . .” (Dkt. 1 at ¶ 66). As to the District, Defendants allege that this claim must

be dismissed because “[i]t is well settled that pursuant to New York law, public policy bars

claims for intentional infliction of emotional distress against a governmental entity.” (Dkt.

15-1 at 30 (quoting Wolfe v. Rochester, No. 6:14-cv-6581-MAT-MWP, 2016 WL 5845569,

at *5 (W.D.N.Y. Oct. 6, 2016)). Defendants are correct that Plaintiff cannot recover against

a school district for intentional infliction of emotional distress, and this claim is dismissed

against the District without leave to amend.

Defendants contend that the claim should be dismissed against Clark and Power also

because Plaintiff has failed to allege that they engaged in extreme and outrageous conduct.

6 A plaintiff who missed the deadline for filing a notice of claim may request an

extension of time in state court. See N.Y. Gen. Mun. §§ 50-e(5); (7). This Court is without

jurisdiction to grant Plaintiff leave to file a late notice of claim. Horvath v. Daniel, 423 F.

Supp. 2d 421, 424 (S.D.N.Y. 2006).

(Dkt. 15-1 at 30-31). “The New York state law tort of intentional infliction of emotional

distress ‘has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe

emotional distress, (3) a causal connection between the conduct and the injury, and (4)

severe emotional distress.’ . . . Furthermore, ‘New York sets a high threshold for conduct

that is “extreme and outrageous” enough to constitute intentional infliction of emotional

distress.’” A.M. ex rel. J.M. v. NYC Dep’t of Educ., 840 F. Supp. 2d 660, 690 (E.D.N.Y.

2012) (quoting Bender v. City of N.Y., 78 F.3d 787, 790 (2d Cir. 1996)). The conduct at

issue 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 v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (quoting Howell

v. N.Y. Post Co., 81 N.Y.2d 115, 122 (1993)).

Here, not only has Plaintiff failed to allege conduct by Clark and Power that was so

extreme and outrageous to go beyond all bounds of decency, but also absent from the

complaint are allegations that Clark and Power acted with the intention to inflict emotional

distress on Plaintiff. The allegations reflect that the mother informed school officials that

L.K. did not want to see Plaintiff and that when Plaintiff showed up at the school, L.K.

refused to leave with him. (Dkt. 1 at ¶¶ 30, 34). Thus, even by Plaintiff’s own admissions,

Clark and Power acted in accordance with L.K.’s alleged wishes rather than an expression

of malice towards Plaintiff. Taking the allegations against Defendants as true, there is

simply no reasonable basis for the Court to conclude that any Defendants intentionally

inflicted emotional distress upon Plaintiff. For these reasons, the claim must be dismissed.

Moreover, the Court declines to grant Plaintiff leave to replead because better pleading

cannot cure the deficiencies with this claim—particularly in view of the facts as alleged in

the complaint. In other words, a liberal reading of the facts as alleged does not give any

indication that a claim for intentional infliction of emotional distress could be validly

asserted against Defendants.

iii. Negligence—Count Nine

Plaintiff alleges a claim for negligence, contending that the District, Clark, and

Power owed him and L.K. a duty of care under New York law and various District policies

to “reasonably interpret custody documents, facilitate equal justice for joint custodians,

report suspected abuse, and avoiding facilitating alienation,” which arises from their role

as state actors in loco parentis. (Dkt. 1 at ¶ 76). Plaintiff further alleges that Defendants

breached that duty by not reporting the suspected child abuse and denying Plaintiff access

to L.K. (Id. at ¶ 77). Defendants move to dismiss this count on the grounds that Plaintiff

has failed to establish that Defendants owed him a duty of care. (Dkt. 15-1 at 31-32).

“The elements of a negligence claim under New York law are: (i) a duty owed to the

plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by

that breach.” Pasternack v. Lab. Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir. 2015)

(quotation omitted). “It is axiomatic that there can be no claim for negligence in the

absence of a duty of care, running to the injured party,” and “[t]he existence and scope of

a duty is an issue of law for the court to determine.” Kennedy-McInnis v. Biomedical Tissue

Servs., Ltd., 178 F. Supp. 3d 97, 102 (W.D.N.Y. 2016).

First, the Court agrees that New York law does not establish that Defendants owed

Plaintiff a duty of care stemming from their role as state actors in loco parentis. “In New

York, schools owe a special duty . . . to students[,] requir[ing] a school to act when a child,

while in its charge, is threatened by the negligence of a third party, and it must make

reasonable efforts to anticipate such threats” and “will be held liable for foreseeable injuries

proximately related to the absence of adequate supervision.” Murray v. Nazareth Reg’l

High Sch., No. 20-CV-1471 (RJD) (RML), 2022 WL 3139116, at *2 (E.D.N.Y. Aug. 5,

2022) (quotations and citations omitted); PC-41 Doe v. Poly Prep Country Day Sch., 590

F. Supp. 3d 551, 568 (E.D.N.Y. 2021) (“Starting with the duty element, it is well settled

that [i]n New York, schools are under a special duty of in loco parentis, which obligates

them to exercise such care of [their charges] as a parent of ordinary prudence would

observe in comparable circumstances.” (quotation modified). But while Plaintiff correctly

identifies that Defendants were under a special duty, he fails to account for the fact that the

duty of in loco parentis extends to a school’s duty to students, not parents. And because

the Court has found that Plaintiff may not bring suit on behalf on his children in this action

as a pro se party, whether Defendants owed a duty to L.K. is not relevant to the

determination whether Plaintiff has plausibly pleaded that Defendants owed him a duty of

care.

Second, the Court is unpersuaded that Plaintiff may rely on several District policies

to establish that Defendants owed him a duty of care. Defendants cite Schiebel v. Schoharie

Cent. Sch. Dist., No. 1:22-CV-1109 (LEK/DJS), 2025 WL 1727117, at *3 (N.D.N.Y. June

20, 2025), in which the court held that no legal duty of care existed “to enforce the school

district’s policies and procedures equitably and fairly. . . .” (citing Doe v. Syracuse Univ.,

440 F. Supp. 3d 158, 181 (N.D.N.Y. 2020) (university had no duty of care to keep the

plaintiff free from discrimination)) (further citation omitted). The undersigned concluded

similarly in Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 409 (W.D.N.Y.

2017), finding that New York law did not recognize a duty of care arising out of a school’s

accreditation standards. Plaintiff not having identified any caselaw to the contrary, the

Court concludes that Plaintiff has not plausibly established that District policies conferred

a duty of care on Defendants to Plaintiff. This claim is dismissed without leave to amend

because better pleading will not cure these deficiencies.

CONCLUSION

For the foregoing reasons, the Court grants Plaintiff’s motion for leave to file notice

of supplemental authority (Dkt. 20) and Plaintiff’s motion for leave to file a sur-reply (Dkt.

27). As noted above, the Clerk of Court is directed to file Plaintiff’s sur-reply, attached as

Exhibit A to Docket 27 at pages 4 through 26, on the docket.

The Court also grants the motion to dismiss (Dkt. 15) on all causes of action except

for Plaintiff’s claim for First Amendment retaliation (Counts Six and Ten) and a violation

of procedural due process (Counts One and Seven). Because the surviving claims are

asserted against Clark and Power only, the District and Saitta are dismissed from this

action. In addition, as noted, Plaintiff may not pursue claims on behalf of his minor

children and they shall be terminated as plaintiffs in this action.

Plaintiff may file an amended complaint in accordance with this Decision and Order

within thirty (30) days. Plaintiff is cautioned that any amendment must comply with this

Decision and Order, and he may only attempt to plead dismissed claims where leave to

amend was granted. Moreover, if Plaintiff attempts to plead dismissed claims he must

plausibly allege facts in accordance with the principles set forth herein, along with the

personal involvement of any identified defendant. Plaintiff is further advised that an

amended complaint is intended to completely replace the prior complaint in the action. “It

is well established that an amended complaint ordinarily supersedes the original and

renders it of no legal effect.” Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) (quoting

Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)). Therefore, Plaintiff’s

amended complaint must include all of the allegations against Defendants so that the

amended complaint may stand alone as the sole complaint in this action which Defendants

must answer. If Plaintiff does not file an amended complaint, this action will proceed on

the claims for First Amendment retaliation (Counts Six and Ten) and violation of

procedural due process (Counts One and Seven) against Clark and Power only. All other

claims against all other defendants will remain dismissed.

Defendants’ deadline to answer or otherwise appear in this matter is held in

abeyance pending further order of the Court, and will be set once it is clear whether Plaintiff

intends to file an amended complaint in accordance with this Decision and Order.

SO ORDERED. ) :

SLIZABETH AY WOLFORD

Chief Judge

United States District Judge

Dated: September 14, 2026

Rochester, New York

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