823 F. Supp. 2d 193
E.D.N.Y2011Background
- TL, an eighth-grade student at Riverhead Middle School, was summoned to the principal's office after an alleged drug transaction was reported by a security guard.
- Principal Pekar ordered a search of TL; Toliver pat-down TL and required removal of boots; search lasted under two minutes with no drugs found.
- Plaintiffs claim there was no reasonable ground for suspicion and that Pekar lacked any supporting witness or statements.
- Plaintiffs filed a §1983 complaint on December 30, 2009 against the District, Board, and individual Defendants Doyle and Pekar; Marilyn Love asserted a derivative §1983 claim.
- The District and Board answered on May 17, 2010; Defendants moved for partial summary judgment on August 8, 2011, arguing improper service and derivative claims.
- The court granted in part and denied in part the motion, addressing service issues and Marilyn Love’s derivative and standalone claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on the individual defendants was proper | Plaintiffs provided affidavits showing service on Doyle and Pekar. | Defendants claim improper service and lack of personal jurisdiction over Doyle and Pekar; service waived defenses were not timely asserted. | Waiver of improper service defense; dismissal denied for improper service grounds. |
| Whether Marilyn Love's §1983 claims are derivative and/or cognizable on their own | Love's claims allege her own procedural due process rights and possible equal protection violations. | Claims are derivative of TL's rights and/or concern non-cognizable emotional distress, not enforceable under §1983. | Derivative claims dismissed; no cognizable independent §1983 claim for Love; any equal protection claim also dismissed. |
Key Cases Cited
- Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) (parental §1983 claim possible when actions target parent-child relationship)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (summary judgment standard; burden on movant to show absence of genuine issue)
- Santos v. State Farm Fire and Casualty Co., 902 F.2d 1092 (2d Cir. 1990) (insufficiency of service must be timely raised; separate defenses not to be conflated)
- Gallo v. Prudential Residential Servs., 22 F.3d 1219 (2d Cir. 1994) (summary judgment burden; little evidence supports nonmovant's case)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parents have liberty interest in care, custody, and control of children)