# Killian

> District Court, W.D. New York · September 14, 2026

URL: https://www.frixlaw.com/law-library/cases/11441206

## Case

- **Full name:** Travis Killian, individually and as natural parent and legal guardian of his minor children (L.K.) and (Q.K.) v. Fairport Central School District, Robert Clark, Madison Power, and Andrea Saitta
- **Court:** District Court, W.D. New York
- **Decided:** September 14, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11441206. Public record. Not legal advice.