MEMORANDUM—DECISION and ORDER
I. INTRODUCTION
Plaintiff B.A. (“B.A.” or “plaintiff”) has filed this civil rights action on behalf of her son M.G., Jr. (“M.G.”) against defendants City of Schenectady School District (the “District”); Marianne Cristello (“Mrs. Cris-tello”), a first-grade teacher at the District’s Woodlawn Elementary School (‘Woodlawn”); Barbara Coffey, the Principal of Woodlawn (“Principal Coffey”); John Yagielski, the District’s Interim Superintendent (“Superintendent Yagielski”); Patricia Paser, the Assistant to the Superintendent (“Assistant Paser”); and John and Jane Does (the “Does”) (collectively “defendants”).
B.A.’s operative complaint asserts two federal claims pursuant to 42 U.S.C. § 1983, the first alleging a violation of M.G.’s Fourteenth Amendment right to substantive due process during an in-school incident with his first-grade teacher while the second is based on a later instance of discipline allegedly meted out in retaliation for First Amendment-protected activity. Plaintiffs complaint includes related state law claims for assault and bat
Defendants have moved pursuant to Federal Rule of Civil Procedure (“Rule”) 56 seeking summary judgment on all of B.A.’s claims. The motion has been fully briefed and will be decided on the basis of the submissions without oral argument.
II. BACKGROUND
During the 2011-2012 school year, M.G. was a student in Mrs. Cristello’s first-grade class at Woodlawn. On Friday, December 16, 2011, M.G., who had recently turned six years old, attended the annual Woodlawn holiday concert with his parents. Although M.G. wanted to go home after the concert ended around 11:00 a.m., both parents had to go back to work and instead returned M.G. to Mrs. Cristello’s classroom. Before B.A. left, she explained to Mrs. Cristello that “I won’t be able to take him today” and warned her that “[h]e’s going to be a little upset.”
B.A.’s instincts proved correct. Even though his parents had just refused to take him home with them, M.G was still set on leaving school for the day and continued to express this desire to all those who remained with him in Mrs. Cristello’s classroom. Soon enough, G.A., a classmate’s parent who had also attended the holiday concert that morning, overheard M.G.’s pleas and offered to let him use her cell phone to call his mother. M.G. accepted G.A.’s offer and began to dial plaintiff.
Mrs. Cristello was not present when this initial exchange between M.G. and G.A. occurred, but when she saw M.G. using a cell phone she grabbed M.G. by the shoulders “so hard that you could see red marks from where her fingers had been,” shook him while screaming at him “maybe 13” or “like 20 times” to “stop crying,” and forcefully pushed him into a seated position on a chair.
G.A. witnessed the incident and alerted B.A., who called M.G.’s father and directed him to immediately return to Woodlawn to pick up M.G. When M.G.’s father arrived at Woodlawn’s attendance office a short time- later to sign M.G. out of school for the day, Mrs. Cristello entered the office, visibly upset, and spoke with M.G.’s father. Although M.G.’s father does not recall the precise details of this confrontation, he claims Mrs. Cristello “tapped her chest” and stated something to the effect of “I don’t have time for this, or I have a classroom full of kids, I don’t have time for this” before walking out.
The following Monday, December 19, 2011, B.A. went to Woodlawn to discuss the cell phone incident with Principal Coffey, who met with plaintiff and Mrs. Cris-tello. At that time, plaintiff demanded an apology from the school, but Principal Coffey and Mrs. Cristello refused to apologize. Later that day, plaintiff reported the incident to Assistant Paser, who initiated an investigation. At some point thereafter, plaintiff also e-mailed Superintendent Yag-ielski about the incident, reported the encounter to Child Protective Services, and informed the local police.
On January 4, 2012, Assistant Paser’s investigation concluded that Mrs. Cristello had not touched M.G. during the incident. Nevertheless, Superintendent Yagielski decided an outside investigation was also warranted. This investigation was conducted in early January 2012 by Stacy Barrick, an attorney with Whiteman, Osterman, and Hannah LLP.
Attorney Barrick interviewed a number of witnesses and likewise determined that although Mrs. Cristello had “raised her voice” to M.G., “the allegation that Mrs. Cristello grabbed [M.G.’s] arm could not be substantiated.” Attorney Barrick concluded that “no actions need to be taken with respect to Mrs. Cristello and that the investigation [should] be closed.”
On January 27, 2012, Superintendent Yagielski presented M.G.’s parents with the findings from Attorney Barrick’s investigation and offered to move M.G. into a different first-grade classroom. M.G.’s parents declined this offer. The parties agree that, aside from this cell phone incident, “neither [M.G.] nor any other person had ever made an allegation of child abuse or any other kind of complaint against Mrs. Cristello,” who had been a teacher at Woodlawn for thirty-seven years by that time.
On May 24, 2012, M.G. was near a stack of plastic bins in Mrs. Cristello’s classroom-when one of the bins fell and hit him on the head. Sharon Clark, the classroom aide, escorted M.G. to the school nurse’s office as a precautionary measure. When M.G. returned from the nurse’s office, his classmates were engaged in a recess period outside. However, neither Mrs. Clark nor Mrs. Cristello would allow M.G. to participate in this free period. Instead, they made him sit on a bench in “time out” as “discipline” for his behavior.
Five days later, on May 29, 2012, B.A. complained to Superintendent Yagielski that when she had picked her son up from school the day the bins had fallen on his head, M.G.’s face was red from the sun “because Mrs. Clark would not allow him to play with his friends” during recess. Notably, however, when the nurse had followed up with M.G. about his head injury that day, he had “neither complained of nor exhibited symptoms of sunburn.”
A.Summary Judgment
The entry of summary judgment is warranted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett,
A fact is “material” for purposes of this inquiry if it “might affect the outcome of the suit under the governing law.” Anderson,
The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the claim. Anderson,
When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party. Jeffreys,
B. 42 U.S.C. § 1983
“The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole,
Accordingly, to prevail on a § 1983 claim, a plaintiff must show (1) the deprivation of a right, privilege, or immunity secured by the Constitution and its laws by (2) a person acting under the color of state law. See 42 U.S.C. § 1983.
C. Supervisory Liability
“It is well-settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Odom v. Matteo,
“The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate
D. Municipal Liability
“Before a municipality can be held liable under § 1983, it must be shown to have been ‘the moving force of the constitutional violation.’ ” Carmichael v. City of New York,
“In order to prevail on a claim against a municipality under section 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
“The fifth element reflects the notion that ‘a municipality may not be held liable under § 1983 solely because it employs a tortfeasor.’ ” Cown v. City of Mt. Vernon,
Accordingly, a plaintiff may satisfy this fifth element with evidence of: “(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.” Cown,
IV. DISCUSSION
The parties’ submissions make clear that they disagree about a broad range of ancillary matters surrounding the two in-school incidents at the heart of this lawsuit. In addition to the various factual disputes noted above, defendants’ memoranda also emphasize that there is an absence of medical records corroborating M.G.’s claims of physical and emotional injury arising from either the cell phone or “time out” incidents and call into doubt the credibility of B.A.’s assertion that she was qualified to administer psychological treatment at home by providing “Christian counseling” to her son. Defs.’ Reply Mem. at 6.
Defendants’ submissions also explore in detail the apparently contradictory aspects of M.G.’s parents’ various sworn statements as well as M.G.’s own testimony, which was given first when he was just six years old and then three years later during a July 17, 2015 deposition. Compare,
At bottom, however, it is unnecessary to address these auxiliary disputes to decide the straightforward question that must be addressed at this juncture—whether, accepting the most serious version of events set forth by B.A. as true and viewing the evidence in the record in the light most favorable to her, a reasonable jury could return a verdict in her favor on one or more of her claims. See Gallo v. Prudential Residential Servs., Ltd. P’ship,
A. Substantive Due Process
B.A.’s substantive due process claim is based on Mrs. Cristello’s alleged mistreatment of M.G. during the cell phone incident that occurred at Woodlawn on December 16, 2011. Defendants assert that the conduct alleged is categorically insufficient to give rise to a substantive due process violation. Plaintiff responds that this case involves a six-year-old student “who was physically mishandled by a teacher” and asserts that, “[i]f such conduct does not rise to the level of conscious [sic] shocking, then it is questionable whether any conduct would.”
“[T]he substantive due process guarantee of the Fourteenth Amendment protects individuals from ‘conscience-shocking’ exercises of power by government actors.” Johnson v. Newburgh Enlarged Sch. Dist.,
“Numerous cases in a variety of contexts recognize [substantive due process] as a last line of defense against those literally outrageous abuses of official power whose very variety makes formulation of a more precise standard impossible.” Hall v. Tawney,
Importantly, however, the amorphous nature of the protections afforded by substantive due process also implicates “a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to ... a font of tort law.” Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist.,
Therefore, although the Second Circuit has “declined to create bright-line rules in this area,” Castellani,
For example, in Bisignano v. Harrison Central School District, the district court analyzed a substantive due process claim asserted by an eighth-grader who alleged that her gym teacher had “grabbed and twisted her left wrist, and yelled at her to give him back his twenty dollars.”
Two years later, in Smith ex rel. Smith v. Half Hollow Hills Central School District, the Second Circuit analyzed a similar substantive due process claim asserted by a seventh-grader whose technology class teacher had “slapped [him] in the face at full-force with an open hand, allegedly causing [] both great physical pain and severe emotional pain for which he underwent psychotherapy.”
Seven years after that, the district court in Perrin v. Canandaigua City School District relied on the Second Circuit’s guidance in Half Hollow Hills to likewise dismiss at the pleadings stage a student’s substantive due process claim based on allegations that his wrestling coach had verbally assaulted him during a match and physically assaulted him afterward by pulling his arms behind his back, forcing him through the door to the locker room, and “puneh[ing] and pok[ing] him in the chest while berating him with the use of foul, profane and demeaning language.”
More recently, in 2011 this Court rejected a substantive due process claim asserted by a seventh-grade student who alleged that the school principal had “grabbed his arm hard” while swearing at him, that a teacher had “yelled and spat on” him, and, on a different occasion, that the school custodian had “ put his hands on [him] in the school cafeteria in order to physically
Just last year, the Second Circuit returned to the basic parameters it laid out in Half Hollow Hills to affirm Judge McA-voy’s rejection of a substantive due process claim asserted by student-athletes against a football coach who allegedly handled them roughly, grabbed their facemasks and shoulder pads, shook them, and screamed at them “in such close proximity that he spat on them.” Votta ex rel. R.V. & J.V. v. Castellani,
Notably, these cases do not rule out the possibility that improper conduct by teachers or coaches may be sufficiently conscience-shocking to give rise to a violation of constitutional magnitude. For example, in Johnson v. Newburgh Enlarged School District, the Second Circuit affirmed the denial of qualified immunity to a gym teacher who allegedly assault a student by lifting him off the ground by his neck, dragging him across a gym floor, choking him, slamming the back of his head against the bleachers four times, ramming his forehead into a metal fuse box, and punching him in the face.
Keeping in mind the guideposts these cases provide, B.A.’s substantive due process claim must fail. Plaintiff asserts that when Mrs. Cristello caught M.G. using a cell phone in her classroom without her permission, she immediately grabbed him by both arms, shook him by the shoulders, slammed him into a chair, and yelled in his face that he should “stop crying” between thirteen and twenty times. As a result of this incident, M.G. suffered from red marks on his arms, nightmares, and a reluctance to return to school. Even viewed in the light most favorable to plaintiff, no reasonable jury could conclude that this incident amounts to the type of “conscience shocking” behavior that implicates the safeguards of substantive due process.
B.A. cites to a Ninth Circuit case, Preschooler II v. Clark County School Board of Trustees, to argue that M.G.’s age—he was only six years old at the time the cell phone incident occurred—is an important additional factor that must be considered in determining whether a reasonable jury could conclude defendants’ actions shocked the conscience.
Among other things, the alleged physical abuse in that case included “hitting [the child’s] head and face,” “maliciously body slamm[ing him] into a chair,” causing “noticeable bruising to [his] arms [and] .... inner thigh regions,” and on four occasions forcing him to “walk without shoes across the asphalt” from the school bus to his classroom.
Of course, M.G.’s relative youth does set him somewhat apart from the middle-school students whose substantive due process claims were rejected in several of the cases set forth above. Compare Preschooler II,
But even accepting that M.G.’s youth is a particularly relevant consideration, the allegations of Preschooler II are completely distinguishable from the events involved in the cell phone incident here. Simply put, “the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.” Cnty. of Sacramento,
In other words, even accepting the most egregious version of the cell phone incident exactly as it is described in B.A.’s opposition papers and viewing the record evidence in her favor for purposes of this motion, Mrs. Cristello’s conduct does not rise to the level of a constitutional violation as á matter of law. Rather than describe conduct that shocks the conscience, the evidence in the record resembles precisely the sort of wrongful acts occurring in a school environment that have been repeatedly held insufficient to state a claim of constitutional magnitude. See, e.g., Votta ex rel. R.V. & J.V.,
B. First Amendment Retaliation
B.A.’s First Amendment retaliation claim is based on the May 24, 2012 incident where M.G. was required to sit in “time out” after returning from the nurse’s office even though his classmates were permitted to enjoy a recess period outside.
“The Second Circuit has described the elements of a First Amendment retaliation, claim in several ways, depending on the factual context.” Odermatt v. Way,
With respect to the second element, “[e]vidence of improper motive ‘may include expressions by the officials regarding their state of mind, circumstances suggesting in a substantial fashion that the plaintiff has been singled out, or the highly unusual nature of the actions taken.’” Anderson v. City of New York,
Looking to guidance outside the school context, “an adverse action in a First Amendment retaliation case is ‘conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Cox,
As an initial matter, B.A. has been less than clear about identifying the precise speech or conduct upon which this claim is based, stating in her opposition paperwork only that: (1) M.G. has a protected right to complain about the use of excessive force in the classroom; and he (2) “made actual complaints” to defendants “in addition to his parents making complaints on his behalf.” Pl.’s Opp’n at 17.
B.A. is correct as the former assertion, which is presumably referring to her alleged version of the cell phone incident of December 16, 2011. See Cox,
This claim fails as a matter of law for several reasons. First, to the extent it is based on complaints that M.G.’s mother claims to have made to various defendants on M.G.’s behalf, those complaints are not attributable to M.G. for purposes of vindicating his own constitutional rights in this context. Cf. Martinez v. City of New York,
However, assuming otherwise “in light of the special characteristics of the school environment,” a setting where a parent may feel a particular need to assert a
In other words, nearly five months passed between this speech and the only allegedly adverse action identified by B.A. as relevant here—the “time-out” on a bench during recess that M.G. was forced to endure on May 24, 2012, after he returned from his visit to the nurse’s office. So while the Second Circuit has repeatedly declined to draw “a bright line rule to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action,” this five-month gap, in these particular circumstances, would seem to fall on the wrong side of this outer limit. Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty.,
But even if this additional issue were also resolved in favor of B.A., the retaliation claim would still fail. The alleged retaliatory act in this case involved M.G. being forced, on a single occasion, to sit outside in “time out” for approximately fifteen minutes after he returned from the nurse’s office, resulting in a sunburn. Although they of course dispute the necessity of this “time out,” they agree that a bin did fall from a classroom shelf onto M.G.’s head that day. Defendants’ alleged conduct, under these circumstances, is precisely the sort of de minimis retaliatory act that is legally insufficient to support a First Amendment retaliation claim. Cf. Cox,
The decision to reject this claim is further reinforced by the fact that this “time out” apparently did nothing to chill anyone’s speech. As for B.A., she wrote to Superintendent Yagielski five days after this incident to complain about Mrs. Cris-tello and Mrs. Clark as well as express her view that “6 minutes would have been enough” of a “time out” for the bin incident. Cf. Oliveras v. Saranac Lake Cent. Sch. Dist.,
In essence, accepting the retaliation theory offered here would subject an entire range of day-to-day decision-making by a school teacher to constitutional attack, regardless of whether B.A.’s claim is based on M.G. allegedly confronting Mrs. Cristel-lo for lying or whether it is also based on the additional complaints plaintiff claims to have made to defendants on M.G.’s behalf.
C. Remaining Claims
Where, as here, a plaintiffs federal claims will be dismissed before trial, a district court should generally decline to exercise supplemental jurisdiction over any state law claims absent exceptional circumstances. Genovese v. Town of Southampton,
There are no exceptional circumstances present in this ease that might warrant a different conclusion. Because summary judgment will be ¡granted as to the federal law claims against defendants, the exercise of supplemental jurisdiction over plaintiffs various state law claims will be declined. 28 U.S.C. § 1367(c)(3). Accordingly, those state law claims will be dismissed without prejudice.
V. CONCLUSION
The incidents at the heart of this lawsuit, even viewed in the light most favorable to B.A., do not entail conduct of constitutional proportions. Since these § 1983 claims fail as a matter of law, it is therefore unnecessary to determine whether qualified immunity might also operate to shield defendants’ alleged conduct from liability. See Ctr. Moriches Union Free Sch. Dist.,
Therefore, it is
ORDERED that
1. Defendants’ motion for summary judgment is GRANTED in part and DENIED in part;
2. Plaintiffs substantive due process and retaliation claims brought pursuant to 42 U.S.C. § 1983 are DISMISSED; and
,3. Jurisdiction over plaintiffs state law claims is DECLINED and those claims are DISMISSED without prejudice.
The Clerk of the Court is directed to enter a judgment accordingly and close the file.
IT IS SO ORDERED.
Notes
. The following facts are drawn principally from the Statement of Material Facts filed by defendants in accordance with Local Rule 7.1(a)(3). See ECF No. 46-2. Unless otherwise noted, these facts have been admitted by plaintiff in her responsive filing. See ECF No. 53. For purposes of this motion, the facts in the record will be construed in the light most favorable to plaintiff, the non-movant here, with all reasonable inferences drawn and all factual ambiguities resolved in her favor. See, e.g., Capobianco v. City of New York,
. Presumably, she also returned the cell phone to G.A. Notably, M.G. acknowledged during his testimony that students in Mrs. Cristello’s class were not allowed to use cell phones. In any event, defendants insist that "Mrs. Cristello did not move towards, or place her hands on, [M.G.] at any time.”
.Defendants dispute this characterization and instead assert Mrs. Cristello was merely expressing her concern about a possible safety issue. As she explained during her deposition, "I wasn’t sure that he knew this adult and we're very careful to warn students and especially young children about taking anything or interacting with people they don’t know, so I was concerned about that.”
. The precise timing of events recounted in this paragraph is unclear.
. B.A. claims "she may have complained about Mrs. Cristello having turned the lights in the classroom on and off and raising her voice to [M.G.] in the past, but she only complained to Mrs. Cristello.”
.Defendants assert that only Mrs. Clark made this decision and that M.G. was forced to sit out .of recess as a precautionary measure in the wake of his head injury.
. “Factors to be considered in excessive force claims [i]n determining whether the constitutional line has been crossed include the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” EC ex rel. RC v. Cnty. of Suffolk,
. The child’s claim was actually analyzed under the Fourth Amendment's "reasonableness” standard. Preschooler II,
. “Typically, "[t]he allegation of a chill is indispensable for private plaintiffs.” Ford v. Reynolds,