Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X 3/6/2024
:
MARILYN BLANCO, et al., :
:
Plaintiffs, :
: 23-cv-01652 (LJL) -v- : : OPINION AND ORDER
SUCCESS ACADEMY CHARTER SCHOOLS, INC., et : al., :
:
Defendants. :
:
---------------------------------------------------------------------- X
LEWIS J. LIMAN, United States District Judge:
Defendants Success Academy Charter Schools, Inc. (“Success Academy”), Success
Academy Charter School Harlem 2 (“Harlem-2”), Success Academy Chief Executive Officer
(“CEO”) Eva Moskowitz (“Moskowitz”), Harlem-2 Principal Amelia Cohen (“Cohen”), and
Harlem-2 Assistant Principal Carlos Alvarez (“Alvarez,” and together with Success Academy,
Harlem-2, Moskowitz, and Cohen, “Defendants” ) move, pursuant to Federal Rule of Civil
Procedure 12(b)(6), to dismiss the first amended complaint for failure to state a claim for relief.
Dkt. No. 41. Defendants also seek to dismiss the claims against Alvarez under Rule 12(b)(5) for
insufficient service of process. For the following reasons, the motion is granted.
Plaintiffs also name four “John Does” in the caption of their amended complaint, but make no
allegations about any of them.
See
Dkt. No. 35. Simply listing unidentified defendants in a
complaint’s caption without making a single allegation as to their involvement in the conduct at
issue is insufficient to state a claim.
See, e.g.
,
Antrobus v. New York City
,
BACKGROUND
For purposes of this motion, the Court accepts as true the well-pled allegations of the first amended complaint (“FAC” or the “Complaint”) as supplemented by the documents incorporated by reference.
Plaintiff I.B. (“I.B.”) is a seven-year-old child who suffers from Attention Deficit Hyperactive Disorder (“ADHD”). Dkt. No. 35 ¶¶ 2, 7. Plaintiff Marilyn Blanco (“Blanco,” and together with I.B., “Plaintiffs”) is I.B.’s mother and legal guardian. Id. ¶ 6. Plaintiffs reside in the Bronx. Id. ¶¶ 6–7.
Harlem-2 is a public charter school located in the Harlem neighborhood of Manhattan, and is wholly controlled and operated by Success Academy, a non-profit corporation organized under the laws of Delaware that receives direct funding from the federal government and the State of New York and resources from the City of New York. Id. ¶¶ 8–9, 14; see also id. ¶ 1. Success Academy operates forty-seven schools across New York City. Id. ¶ 8. Defendant Moskowitz is the CEO of Success Academy and has decision-making authority over Success Academy. Id. ¶ 12. Defendant Cohen is the Principal of Harlem-2 and an employee of Success Academy. Id. ¶ 10. Defendant Alvarez was, at all relevant times, the Assistant Principal of Harlem-2 and an employee of Success Academy. ¶ 11.
I.B. began kindergarten at Harlem-2 during the 2020–2021 school year,
id.
¶ 16, and
attended Harlem-2 until Blanco withdrew him from the school in May 2023,
id.
¶¶ 17, 69.
Plaintiffs claim that, based on his disability, I.B. was subject to a “campaign of harassment”
through,
inter alia
, several suspensions at Harlem-2 beginning in December 2021 until his
withdrawal from the school.
Id.
¶ 18. In February 2022, Blanco, with Harlem-2’s knowledge,
“began seeking psychiatric help and diagnosis for I.B.,” but the suspensions nevertheless
escalated in length and frequency.
Id.
¶¶ 19–20. On March 1, 2022, Blanco met with Alvarez to
discuss putting I.B. on an Individualized Education Program (“IEP”).
Id.
¶ 20. The following
day, Alvarez called Blanco and asked her to pick I.B. up from school.
Id.
¶ 23. When Blanco
arrived at the school, Alvarez informed Blanco that Harlem-2 “could not have I.B . . . in the
building,” and that the school was not a “good fit” for I.B.
Id.
Between March 4, 2022 and
March 17, 2022, I.B. received six suspensions, each for five days. ¶¶ 26–29. I.B. did not
immediately serve any of the suspensions and remained in school because, under the Individuals
as they did not include the Board of Trustees in their list of defendants in the Complaint,
see
Dkt.
No. 35 ¶¶ 8–12 (naming as defendants Success Academy, Harlem-2, Cohen, Alvarez, and
Moskowitz), did not submit an affidavit of service indicating that service has been effected on
the Board of Trustees, and do not appear to have actually effected service on the Board of
Trustees,
see, e.g.
,
Shider v. Commc’ns Workers of Am., Loc. 1105 (NYNEX)
,
establishes annual and short-term objectives for improvements in that performance, and
describes the specially designed instruction and services that will enable the child to meet those
objectives.’”
D.D. ex rel. V.D. N.Y.C. Bd. of Educ.
,
with Disabilities in Education Act (“IDEA”), children with disabilities cannot be removed from school until a Manifestation Determination Review (“MDR”) takes place to determine if the behavior leading to the suspension is connected to the child’s disability. Id. ¶¶ 27, 29; see 20 U.S.C. §§ 1415(j), (k)(1)(E)–(F). [4] On March 17, however, the school held the first MDR meeting and found that I.B.’s behavior was not a manifestation of his disability. [5] Dkt. No. 35 ¶ 31. On March 18, Cohen told Blanco that I.B. was required to start serving fifteen days of the forty days of accumulated suspension time, even though I.B. had only accumulated thirty days. Id. But on March 31, 2022, the school held another MDR meeting, and this time determined that the behavior that led to I.B.’s suspension was due to his disability. Id. ¶ 32. Cohen nevertheless refused to suspend the fifteen days of suspension that I.B. was then serving. Id.
I.B. continued to accumulate suspensions through the rest of his time at Harlem-2. Beginning in March 2022, and as recently as March 13, 2023, I.B. has had numerous post- suspension MDR assessments, and each time the alleged behavior was found to be a manifestation of his disability. Id. ¶ 48. In addition, on April 8, 2022, after receiving ongoing psychiatric observation and treatment for approximately two months, I.B. was officially diagnosed with ADHD. Id. ¶ 33. Cohen, Alvarez, and other staff members at Harlem-2 were immediately informed of the diagnosis. Id. Notwithstanding the MDR determinations and I.B.’s diagnosis, Harlem-2 continued to suspend I.B., conduct that Plaintiffs allege was intended to induce Blanco to remove I.B. from the school permanently. Id. ¶¶ 34, 48. Harlem-2 suspended I.B. on April 21 and 22, and May 5, 6, and 9, 2022, each time for five days. Id. ¶ 34. The suspensions were not served pending MDR assessments, which ultimately concluded that the alleged misbehavior was attributable to I.B.’s disability. Id. ¶¶ 34, 37. This pattern continued through May 2022, after I.B. received his IEP, which required that “he be attended to 1:1 with a para[]professional while in school.” Id. ¶ 38. On May 19, I.B. was again suspended for five days, but on June 6, another MDR was held and ultimately determined that I.B.’s alleged misbehavior was due to his disability. Id. ¶¶ 41–42. On at least one occasion that same month, Harlem-2 officials cited I.B. for a uniform infraction on a day that he was absent from school. Id. ¶ 40.
I.B. started second grade at Harlem-2 in August 2022, with his IEP from the previous school year in place. See id. ¶¶ 43–44. But within days of the start of the new school year, Harlem-2 failed to comply with the terms of I.B.’s IEP. On August 18, 2022, the second day of the 2022–2023 academic year, Blanco learned that I.B. was not accompanied by a paraprofessional as required by his IEP. Id. ¶ 44. Over the course of that school year, the school frequently failed to provide the mandated paraprofessional. Id. ¶ 45. On October 18, 2022, after Harlem-2 persisted in its failure to assign a paraprofessional to I.B., Blanco filed a complaint against Harlem-2 with the New York State Education Department (“NYSED”). Id. ¶ 52. Still, Harlem-2 continued to fail to assign a paraprofessional to I.B. Id. Without a dedicated paraprofessional, I.B. was accused by the school of misbehavior and subjected to suspensions and other consequences. Id. ¶¶ 45, 52. Over the course of the 2022–2023 school year, I.B. was suspended twenty times: in 2022 on September 6, 13, and 16, October 6 and 17, and December 6 and 7; in 2023 on January 20, 25, 27, and 30, February 7, 14, and 22, March 30, and April 11, 14, 17, 19, and 26. Id. ¶ 47.
Plaintiffs allege a series of actions undertaken by Defendants—in addition to frequently suspending I.B.—intended to make the school environment intolerable for I.B. and Blanco. The conduct ranges from comments by Harlem-2 administrators about the school’s suitability for I.B. to physical assault. To start, administrators questioned whether I.B. should remain a student at Harlem-2. Within one week of Alvarez’s comment to Blanco that I.B. was not a “good fit” at Harlem-2 in March 2022 noted above, id. ¶ 23, Cohen told Blanco that I.B. “isn’t normal,” and asked if Blanco or I.B.’s father could stay in the classroom with I.B, id. ¶ 28. This evaluation was echoed by I.B.’s counselor, who also told Blanco that I.B. was “not normal.” Id. ¶ 46. On April 22, 2022, Harlem-2 employees stated that I.B. would not be welcome back to the school until he was cleared by a psychiatric professional, clearance that I.B. obtained the following day. Id. ¶ 35. And on May 12, 2022, Cohen allegedly poked I.B. in the eye, an incident that so upset I.B. that Blanco kept him home from school the following day. Id. ¶ 39. Plaintiffs further allege that, although Harlem-2 officials were aware that I.B. was being bullied by his peers, they took no action to protect I.B. from the bullying. ¶ 51.
Each of Blanco and Harlem-2 leveled accusations against the other in the fall of 2022. As noted above, Blanco reported Harlem-2 to the NYSED for failing to comply with the terms of I.B.’s IEP. Id. ¶ 52. The school also leveled accusations against Blanco. One week after Blanco forgot to give I.B. his medication for the first time (and rushed to the school to give it to him), Cohen suggested that the school, under the guidance of the school’s own mental health professional, administer I.B.’s medication based on Blanco’s single failure to administer the medication at home. Id. ¶¶ 49–50. Cohen continued to imply falsely that Blanco was not giving I.B. his medication. Id. ¶ 54. The school ultimately filed a complaint with New York City’s Administration for Children’s Services (“ACS”) against Blanco, which Plaintiffs allege was retaliatory for Blanco’s complaint with the NYSED. Id. ¶¶ 55–57. On December 16, 2022, the NYSED substantiated Blanco’s complaint and issued a notice stating in part that it had determined Harlem-2 was state education law and city regulations because “the School . . . failed to provide 1:1 paraprofessional service to the Student in accordance with the Student’s IEP recommendations.” ¶ 57; Dkt. No. 35-1.
Over the course of the three years that I.B. was enrolled at Harlem-2, and primarily in the last few months of I.B.’s enrollment at Harlem-2, emergency services, including Emergency Medical Services (“EMS”) and the New York Police Department (“NYPD”), was called eight times based on I.B.’s alleged behavior or because he was alleged to be a danger to himself or others. Dkt. No. 35 ¶¶ 65–66. On April 25, 2022, after an unidentified employee of Harlem-2 notified Blanco that I.B. was exhibiting behavioral problems, Blanco arrived at the school to find I.B. surrounded by police officers and emergency medical personnel, unable to move freely. Id. ¶ 36. Blanco immediately took I.B. to a nearby hospital for observation, where psychiatric professionals concluded that there was no need for police and emergency medical intervention and no need for hospitalization. Id . The school continued to summon emergency services on the basis of I.B.’s conduct the following academic year. On January 6, 2023, Cohen caused emergency services to again be called on I.B., which caused I.B. to again be surrounded by police officers and EMS. Id. ¶ 58. On February 17, 2023, one day after another MDR hearing that concluded that I.B.’s behavior giving rise to a suspension was due to his disability, Blanco was informed by Cohen that 911 was called due to I.B.’s behavior and that officers and EMS responded to the scene. Id. ¶ 59. Although Blanco informed Cohen that she was on her way to the school, I.B. was taken to Harlem Hospital against his will and without his parents. Id. ¶ 60. I.B. was cleared within hours and released. Id. On four other occasions between February and April 2023, Harlem-2 staff called 911 on I.B. See id. ¶¶ 61–64. On three occasions, he was released into the custody of his father or Blanco. Id. ¶¶ 61–63. On the fourth occasion, he was taken to the hospital without advance notice to Blanco, where he was cleared and discharged. Id. ¶ 64. In each instance that Harlem-2 employees caused I.B. to go to the hospital because he was alleged to be a danger to himself or others, hospital medical professionals found that he posed no such risk and discharged him. Id. ¶ 66.
On April 27, 2023, counsel for Success Academy filed a request with the NYSED and the New York City Office of Administrative Trials and Hearings to remove I.B. from Harlem-2. ¶ 68. In May 2023, Blanco removed I.B. from Harlem-2 and the broader Success Academy network of schools. ¶ 69.
PROCEDURAL HISTORY
Plaintiffs initiated this action on February 27, 2023. See Dkt. No. 1. On May 19, 2023, Defendants filed a motion to dismiss. Dkt. No. 29. In response, on June 14, 2023, Plaintiffs filed their FAC, Dkt. No. 35, and the Court then dismissed the motion to dismiss as moot, Dkt. No. 39. The FAC asserts the following six claims: (1) discrimination against I.B. in violation of § 504 of the Rehabilitation Act against Success Academy and Harlem-2 (first cause of action), Dkt. No. 35 ¶¶ 71–78; (2) false imprisonment against Cohen and Alvarez under 42 U.S.C. § 1983 and New York state law (second cause of action), id. ¶¶ 79–84; (3) intentional infliction of emotional distress against all Defendants (third cause of action), id. ¶¶ 85–89; (4) abuse of process against unspecified defendants under 42 U.S.C. § 1983 and state law (fourth cause of action), id. ¶¶ 90–98; (5) municipal and supervisory liability under 42 U.S.C. § 1983 against Success Academy and Moskowitz (fifth cause of action), id. ¶¶ 99–116; [9] and (6) respondeat superior against unspecified defendants (sixth cause of action), id. ¶¶ 117–119.
On June 23, 2023, Defendants filed this motion to dismiss, along with a memorandum of law in support of the motion. Dkt. Nos. 41–42. Defendants move to dismiss the second through sixth causes of action, and all claims against the individual defendants, [10] for failure to state claims for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 42 at 1–2. In addition, Defendants contend that all claims should be dismissed against Alvarez for the failure to make sufficient service of process under Rule 12(b)(5). Id. at 2.
Plaintiffs filed a memorandum of law in opposition to the motion to dismiss and a declaration of counsel in opposition to the motion to dismiss on July 12, 2023. Dkt. Nos. 43–44. On July 24, 2023, Defendants filed a reply memorandum of law in further support of their motion to dismiss. Dkt. No. 48.
DISCUSSION
Defendants move to dismiss all but Plaintiffs’ first cause of action for failure to state a
claim for relief under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 41. Defendants also
move to dismiss the FAC against Alvarez for failure to serve process under Rule 12(b)(5).
Id.
Because “the adequacy of service of process must be resolved before any merits-based challenge
to the complaint,”
Deptula v. Rosen
,
I. Dismissal of Claims Against Alvarez for Failure to Properly Effect Service
Plaintiffs do not dispute that they failed to serve Alvarez with process, but state that they tried to serve Alvarez but were told that he no longer worked at Harlem-2 and were not given any further information. Dkt. No. 44 at 2. Plaintiffs ask that Defendants be ordered to provide contact information for Alvarez and that they be permitted to serve Alvarez nunc pro tunc .
A. Good Cause
As the Federal Rules of Civil Procedure make clear, “[t]he plaintiff is responsible for
having the summons and complaint served within the time allowed by Rule 4(m).” Fed. R. Civ.
Rehabilitation Act—only against Success Academy and Harlem-2, without including any
individual defendants. Accordingly, the Court addresses only Counts Two through Six.
P. 4(c)(1). Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against the defendant or order that service be made within a specified time.”
Fed. R. Civ. P. 4(m). “An exception to this rule exists if a plaintiff is able to demonstrate good
cause for failure to timely serve.”
Cassano v. Altshuler
,
“Good cause is measured against the plaintiff’s reasonable efforts to effect service and
the prejudice to the defendant from the delay, and the court should look to whether the plaintiff
was diligent in making reasonable efforts to effect service.”
Gong v. Sarnoff
, 2023 WL
8096970, at *2 (S.D.N.Y. Nov. 21, 2023) (quoting
George
,
Plaintiffs have not shown good cause for their delay in serving Alvarez. The original
complaint in this action was filed on February 27, 2023.
See
Dkt. No. 1. Defendants first moved
to dismiss the claims against Alvarez for failure to make service of process on May 19, 2023.
Dkt. No. 30 at 7–8. Plaintiffs did not then move for an extension of time to serve Alvarez. In
fact, the first time that Plaintiffs sought any form of an extension was on July 12, 2023, Dkt. No.
44, after they filed their FAC and after Defendants filed their motion to dismiss the FAC.
Plaintiffs’ failure to ask for an extension when they were first put on notice of the insufficient
service “weighs against” a finding of good cause.
See Cassano
,
Plaintiffs “offer no explanation for their failure to effect proper service.”
Cassano
, 186
F. Supp. 3d at 322. Plaintiffs aver that they attempted service on Alvarez at Harlem-2 but, when
told that Alvarez no longer worked at Harlem-2, did nothing further to ascertain Alvarez’s
whereabouts. Dkt. No. 44 at 2. That Defendants provided no information as to Alvarez’s current
home address or employer is not adequate justification for Plaintiffs’ failure to serve.
See, e.g.
,
Junior-Donohue v. Fudge
,
B. Discretionary Authority Absent Good Cause
In the absence of good cause, the Court nevertheless retains “the discretion to grant an
extension of time to serve the defendant.”
Hahn v. Off. & Pro. Emps. Int’l Union
, 107 F. Supp.
3d 379, 382 (S.D.N.Y. 2015). “[A] district court may extend the time to serve if, after balancing
the relative prejudice to the parties and considering all relevant factors, it concludes that such an
extension is justified.”
Mares v. United States
,
The first factor—whether the claims will be time-barred if an extension is not granted and
Plaintiffs must refile—while not dispositive,
see Harmon v. Bogart
,
Courts next consider whether the unserved defendant had actual notice of the claims
asserted in the complaint.
See, e.g.
,
DeLuca
,
The third factor, however, cuts against Plaintiffs, as Defendants highlighted the lack of
service on Alvarez in their first motion to dismiss, Dkt. No. 29, and Plaintiffs nevertheless did
not address it in a timely fashion,
see, e.g.
,
Vaher
,
Finally, the fourth factor—whether the unserved defendants would be prejudiced by an
extension—cuts in favor of granting an extension to Plaintiffs to effect proper service. Courts in
this Circuit have found such prejudice where service would be made at a later stage of litigation,
such as when discovery has completed.
See, e.g.
,
George
,
On balance, the factors relevant to the Court’s determination whether to excuse a party’s untimely service weigh in Plaintiffs’ favor. Accordingly, the Court exercises its discretion to grant Plaintiffs an extension of time to serve Alvarez.
II. Dismissal of Claims Against All Defendants for Failure to State a Claim
Defendants further move to dismiss all of the claims in the FAC except for the first—the claim of discrimination in violation of the Rehabilitation Act—for failure to state a claim. See Dkt. No. 42 at 8–23.
In considering a motion to dismiss pursuant to Rule 12(b)(6), a “court must accept the
material facts as alleged in the complaint as true and construe all reasonable inferences in the
plaintiff’s favor.”
Phelps v. Kapnolas
,
With these rules in mind, the Court considers each of the challenged causes of action and Defendants’ arguments in turn.
A. False Arrest and False Imprisonment Claim
In their second cause of action, Plaintiffs assert that Cohen and Alvarez are liable for false arrest and imprisonment under both 42 U.S.C. § 1983 and state law. Dkt. No. 35 ¶¶ 79– 84. As noted, Plaintiffs allege that EMS workers and NYPD officers were contacted numerous times by Harlem-2 employees based on I.B.’s alleged behavior, and that on at least two occasions, he was removed to a hospital against his will. Id. ¶¶ 60, 64. Plaintiffs allege that Cohen and Alvarez “caused I.B. to be confined against his will and without his consent.” Id. ¶ 80.
Defendants contend that Plaintiffs have failed to state a claim for false imprisonment or false arrest. As to Alvarez, Defendants argue that the FAC does not allege any facts that Alvarez called 911 or in any way caused I.B. to be confined. Dkt. No. 42 at 8. As to Cohen, Defendants argue that Cohen’s alleged acts in directing first responders to I.B. cannot give rise to liability for false imprisonment because she merely furnished information to law enforcement and the responding officers had the freedom to exercise their own judgment whether an arrest should be made; that I.B. was not confined; and that any seizure was reasonable. Id. at 8–11. Defendants also argue that both Alvarez and Cohen enjoy qualified immunity against Plaintiffs’ claims. at 12.
“False arrest and false imprisonment . . . are two names for the same tort.”
Holland v.
City of Poughkeepsie
,
“In analyzing § 1983 claims for unconstitutional false arrest, [courts] have generally
looked to the law of the state in which the arrest occurred.”
Id.
(quoting
Davis v. Rodriguez
, 364
F.3d 424, 433 (2d Cir. 2004)). “A § 1983 claim for false arrest . . . is substantially the same as a
claim for false arrest under New York law.”
Ackerson v. City of White Plains
,
“To ‘establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff
must show the . . . the defendant’s personal involvement in the alleged constitutional
deprivation.’”
Kravitz v. Purcell
,
“New York law holds that a ‘defendant’ can be said to have ‘instigated’ the arrest of a
plaintiff if [s]he does so ‘with knowledge that there is no lawful basis therefor,’”
Powell v.
Scollard
,
The FAC alleges a large number of instances in which EMS or the police were called to
investigate an alleged incident involving I.B.
See
Dkt. No. 35 ¶ 65 (emergency services called
eight times on I.B.). However, the FAC contains no allegations that Alvarez was involved in any
of the incidents involving either EMS or the police. Indeed, the only allegations against Alvarez
are (1) that he was Assistant Principal at Harlem-2,
id.
¶ 11; (2) that on March 1 and 2 of 2022—
before the first of the alleged arrests on April 25, 2022,
see id.
¶ 36—he discussed with Blanco
the process of obtaining an IEP for I.B. and told Blanco that I.B. was not a “good fit” for
Harlem-2,
id.
¶¶ 20, 23–24; and (3) that later in March 2022, when Blanco picked I.B. up from
school and asked Alvarez how I.B.’s day went, “Alvarez told her he was not allowed legally to
speak to her,”
id.
¶ 30. In short, the FAC nowhere alleges that Alvarez had anything to do with
the incidents involving emergency services. That Alvarez was Assistant Principal of Harlem-2
does not alone make him legally responsible under § 1983 or New York false imprisonment law
for the conduct of others at the school.
See, e.g.
,
K.D. ex rel. Duncan v. White Plains Sch. Dist.
,
The FAC also does not allege sufficient facts to plausibly establish that, on the single
occasion that Cohen contacted emergency services, I.B. was confined, although Plaintiffs may be
able to cure that defect in an amended pleading. A person is “seized” for Fourth Amendment
purposes when his liberty is restrained “by means of physical force or show of authority.”
Salmon v. Blesser
,
The age of the plaintiff is also relevant. Conduct that would not lead a reasonable person
of mature years to believe she was not free to leave might still reasonably instill that view in a
person who has not yet reached the age of maturity.
Estate of M.D.
,
The FAC alleges that, “[o]n January 6, 2023, Defendant Cohen caused 911 to be called on I.B. again and caused I.B. to be surrounded by NYPD officers and EMS.” Dkt. No. 35 ¶ 58. [15] The allegation is more specific than those made with respect to I.B.’s other encounters with emergency personnel where Plaintiffs merely state that “members of NYPD, FDNY and EMS were there.” Id. ¶ 62. At the same time, however, the FAC includes an allegation in which an unnamed “employee of Harlem-2” called emergency personnel, causing I.B., “surrounded by police officers and [emergency medical technicians],” to be “trapped and unable to move about,” but Cohen is not alleged to have been involved in that incident. ¶ 36. And Cohen is not alleged to have called or directed another staff member to call EMS on the occasion that emergency responders took I.B. to the hospital against his will. See id. ¶¶ 59–60 (stating only that “Blanco was informed by Defendant Cohen that 911 was called due to I.B.’s behavior”).
It is axiomatic that “[n]ot every encounter between a state official and a private citizen is
a seizure.”
See, e.g.
,
Dejesus
,
If I.B. was in fact arrested or confined, however, the FAC does contain sufficient
allegations that Cohen instigated such confinement by making a false report. The FAC alleges,
“[u]pon information and belief, Defendant Cohen either caused the false imprisonment by
directing first responders to I.B. and falsely claiming he was a danger of serious physical injury
or death to himself or others, or was advised in each case before arrival of first responders who
were called based on false allegations about I.B., and had the authority and opportunity to stop it,
but did not.” Dkt. No. 35 ¶ 81. Although the pleading is less than clear, the facts alleged make it
plausible that Cohen’s report to the NYPD that I.B. was a danger to himself and others was
knowingly false and made to encourage the police to remove him from the school. The FAC
contains facts from which it is plausible to infer that Cohen, or others at Success Academy,
wanted I.B. removed from the school on January 6, 2023. It is reasonable to assume that a
school official who contacts the NYPD intends, or at least foresees, that the officers will take
some action that the school official herself could not take, including removal of the student from
the school.
See, e.g.
,
S.G. v. Success Acad. Charter Schs., Inc.
,
The FAC also contains facts from which it plausibly can be inferred that Cohen knew her
report was false, “thereby making the police agents in accomplishing defendant’s intent to
confine the plaintiff.”
TADCO Const. Corp.
,
As to the remainder of the incidents where 911 was called, at most what Plaintiffs have
done is allege that unnamed employees of Harlem-2 called 911, Dkt. No. 35 ¶¶ 61–64, 66, and,
upon information and belief, that Cohen “either caused the false imprisonment by directing first
responders to I.B. and falsely claiming he was a danger of serious physical injury or death to
himself or others, or was advised in each case before arrival of first responders who were called
based on false allegations about I.B., and had the authority and opportunity to stop it, but did
not,”
id.
¶ 81. But those allegations are conclusory,
see Iqbal
,
B. Intentional Infliction of Emotional Distress
Plaintiffs’ third cause of action is an intentional infliction of emotional distress (“IIED”) claim against all Defendants. Dkt. No. 35 ¶¶ 85–89. Plaintiffs allege that the conduct of each of the Defendants in constantly suspending I.B., denying him paraprofessional assistance in violation of his IEP “to create negative manifestations of I.B.’s disability,” calling emergency services on I.B., telling Blanco that I.B. was “not normal,” and initiating a false complaint against Blanco with the City’s child welfare agency, ACS, were all extreme, outrageous, and beyond the bounds of decency and were carried out with the intent to inflict so much emotional harm on both Plaintiffs that Blanco would withdraw I.B. from Harlem-2. Id. ¶¶ 86–87. Plaintiffs allege that Defendants caused both Plaintiffs to suffer extreme emotional distress and trauma. Id. ¶ 88.
Defendants argue that Plaintiffs have failed to state a claim for intentional infliction of emotional distress for three reasons. First, Defendants assert that Plaintiffs’ claim against Success Academy and Harlem-2 fails because governmental entities cannot be liable for intentional infliction of emotional distress. Dkt. No. 42 at 13. Second, and independently sufficient to dismiss the claim, Defendants assert that Plaintiffs have failed to state a claim against all Defendants because the facts alleged fail to meet the high legal standard necessary for intentional infliction of emotional distress. Id. Third, Defendants argue that the intentional infliction of emotion distress claim is duplicative of Plaintiffs’ other tort claims.
Under New York law, in order to state a claim for IIED, a plaintiff must plead: “(1)
extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial
probability of causing, severe emotional distress; (3) a causal connection between the conduct
and the injury; and (4) severe emotional distress.”
Stuto v. Fleishman
,
“Whether the conduct alleged may reasonably be regarded as so extreme and outrageous
as to permit recovery is a matter for the court to determine in the first instance.”
Stuto
, 164 F.3d
at 827. Conduct may be “extreme and outrageous” where “there is a deliberate and malicious
campaign of harassment or intimidation.”
Rich v. Fox News Network, LLC
,
Accepting as true the allegations in the FAC and giving Plaintiffs the benefit of every
plausible favorable inference, Plaintiffs have outlined a course of conduct that,
in the aggregate
,
could be understood to be outrageous, extreme in degree, atrocious and utterly intolerable in a
civilized society, at least to permit discovery to go forward.
See Blasetti v. Pietropolo
, 213 F.
Supp. 2d 425, 428 (S.D.N.Y. 2002) (determining that, where a complaint could be read to allege
“fairly egregious conduct,” the “prudent course [was] to deny the motions to dismiss to permit
the record to be better developed”);
see also Kaul v. Brooklyn Friends Sch.
,
Such gratuitous conduct, if engaged in by a single defendant or at the behest of a single
defendant or together as a concerted action, would be sufficiently egregious to plausibly plead a
claim for intentional infliction of emotional distress and for discovery to go forward.
See
Moraes
,
Plaintiffs nevertheless fail to state an IIED claim because, as a matter of law, Plaintiffs
cannot plead a claim of IIED against Success Academy or Harlem-2, and, as to the individual
defendants, Plaintiffs do not plead that the conduct was carried out or orchestrated by a single
defendant or through a conspiracy of the individual defendants. First, Plaintiffs cannot make out
a claim against the municipal defendants. Plaintiffs’ claims against Success Academy and
Harlem-2 fail because New York law provides that “claims of intentional infliction of emotional
distress against government bodies are barred as a matter of public policy.”
Dillon v. City of
New York
,
Second, Plaintiffs do not make any factual allegations against the individual defendants
sufficient to state a claim for intentional infliction of emotional distress. Plaintiffs do not plead
involvement or knowledge of a pattern of harassing conduct by any single individual defendant
Curiously, Plaintiffs rely on
T.P. ex rel. Patterson v. Elmsford Union Free School District
,
for that defendant to be held liable for intentional infliction of emotional distress, or a conspiracy
by the individual defendants to harass I.B.
See, e.g.
,
Spavone
,
Plaintiffs allege only a few more facts as to Alvarez. When he was the Assistant
Principal at Harlem-2, Dkt. No. 35 ¶ 11, he told Blanco on March 2, 2022 that Harlem-2 was not
a good fit for I.B. and that the school could not have him in building,
id.
¶ 23, and later that same
day, when Blanco asked Alvarez whether she could bring I.B. to school the following day,
Alvarez told Blanco that he could “not tell [Blanco] not to bring him to school,”
id.
¶ 24. Two
weeks later, when Blanco asked Alvarez how I.B.’s day as she was picking I.B. up from school,
Alvarez responded that he was not legally allowed to speak to Blanco. ¶ 30. But
“[i]nsults . . . and general harassment do not usually constitute a claim for IIED under New York
law.”
Gorman v. Covidien, LLC
,
Plaintiff’s most detailed allegations concern Cohen. Dkt. No. 35 ¶ 10. Plaintiff alleges that, on March 9, 2022, Cohen told Blanco that I.B. “isn’t normal” and asked if either Blanco or I.B.’s father could stay with him in the classroom. ¶ 28. Plaintiff also alleges that on the occasion that an MDR meeting determined that I.B.’s behavior giving rise to a suspension was unrelated to his disability, Cohen told Blanco that I.B. had to start serving time for several of the suspensions he had accrued, id. ¶ 31, and that in late March 2022, after a different MDR meeting determined that I.B.’s alleged behavior was a manifestation of his disability, Cohen refused to suspend the 15 days of suspension he was then serving, id. ¶ 32. On May 12, 2022, Cohen poked I.B. in the eye, id. ¶ 39, and on September 22, 2022, Cohen suggested that the school administer I.B.’s medications under the guidance of a mental health professional after Blanco forgot to timely do so once, id. ¶ 50, and thereafter continued to “imply” that Blanco was not giving I.B. his medication, id. ¶ 54. On January 6, 2023, Cohen allegedly caused police officers to be called to the school based on I.B.’s behavior, id. ¶ 58, and in February 2023, Cohen informed Blanco that 911 was called due to I.B.’s behavior, id. ¶ 59.
None of this conduct rises to the level of being “extreme and outrageous.” Cohen’s
conduct towards Blanco can be characterized as humiliating, insulting and intended to intimidate,
but “‘[a]cts which merely constitute harassment, disrespectful or disparate treatment, a hostile
environment, humiliating criticism, intimidation, insults or other indignities fail to sustain’ an
intentional infliction of emotional distress claim because such conduct ‘is not sufficiently
outrageous.’”
Kinowski v. Home for Elderly Women of Montgomery Cnty., Inc.
, 2023 WL
4865531, at *13 (N.D.N.Y. July 31, 2023) (quoting
Semper v. N.Y. Methodist Hosp.
, 786 F.
Supp. 2d 566, 587 (E.D.N.Y. 2011));
see also Gadson v. City of New York
,
Ultimately, Plaintiffs’ claim for intentional infliction of emotional distress is based on the
allegations that Blanco was subject to a campaign by individuals at the school to cause her
emotional harm and distress by suspending I.B. from school on numerous occasions, setting him
up for failure by depriving him the paraprofessional required by his IEP, making eight 911 calls
based on false information, allowing I.B. to be bullied in school while rebuffing Blanco’s
requests to redress the bullying, and subjecting Blanco to insulting comments. Dkt. No. 44 at
11–12. But the FAC treats all of the Harlem-2 administrators and staff as an undifferentiated
whole, without regard to individual involvement or even individual knowledge. “Pleadings that
fail to differentiate as to which defendant was involved in the alleged unlawful conduct are
insufficient to state a claim.”
Adamou v. County of Spotsylvania
,
The cases upon which Plaintiffs rely,
see
Dkt. No. 44, are distinguishable. In
Blasetti v.
Pietropolo
,
Plaintiffs next allege that unspecified Defendants committed the constitutional and state
law tort of abuse of process, defined as “causing process to issue lawfully but to accomplish
some unjustified purpose,”
Bd. of Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale
Classroom Tchrs. Ass’n, Inc.
,
Plaintiffs do not respond to Defendants’ argument that an abuse of process claim cannot be
based on the 911 call that led to I.B. being sent temporarily to the hospital and thus that claim is
deemed abandoned.
See, e.g., Jackson v. Fed. Express
,
As with claims for false imprisonment, “[w]hen a plaintiff asserts an abuse-of-process
claim under Section 1983,” the Court “turn[s] to state law to find the elements.”
Mangino v.
Incorporated Village of Patchogue
,
First, Plaintiffs have failed to allege any cognizable legal process. “[L]egal process
means that a court issued the process, and the plaintiff will be penalized if he violates it.”
Cook
v. Sheldon
,
Plaintiffs also fail to state a claim for abuse of process for the independent reason that
Plaintiffs do not allege that any of the Defendants obtained any
court
-issued process. Plaintiffs
allege only that Harlem-2 filed a false complaint with ACS initiating an investigation into
Blanco’s care of I.B to retaliate against Blanco for filing a complaint with NYSED regarding the
school’s noncompliance with I.B.’s IEP. Dkt. No. 35 ¶¶ 57, 92. But the fact that the school filed
a complaint with ACS against Blanco is not sufficient to give rise to a claim of abuse of process,
See, e.g.
,
Walia v. Holder
,
Even assuming that an administrative complaint or a call to the police could constitute
“process” within the meaning of the tort, Plaintiffs do not allege any “improper use of process
after it [wa]s issued.”
Williams
,
D. Supervisory Liability
Plaintiffs appear to assert supervisory liability against Moskowitz as CEO of Success Academy. Defendants argue that Plaintiffs’ claim for supervisory liability should be dismissed because Plaintiffs do not allege facts that would establish that Moskowitz violated the Constitution through her own action. Dkt. No. 42 at 3, 18.
The Second Circuit has held that “there is no special rule for supervisory liability.”
Tangreti
,
Plaintiffs do not allege that Moskowitz was involved in the specific offenses complained
of. Accordingly, Plaintiffs have failed to allege that Moskowitz “through [her] own individual
actions, has violated the Constitution.”
Tangreti
,
E. Municipal Liability
Plaintiffs also bring claims of municipal liability under Section 1983 as to “Success
Network”—an entity undefined in the FAC but which the Court construes to be Success
Academy. Dkt. No. 35 ¶¶ 99–116. For purposes of § 1983 claims, “school districts are
considered to be local governments and are subject to similar liability as local governments.”
J.L. on behalf of J.P. v. N.Y.C. Dep’t of Educ.
,
Plaintiffs allege,
inter alia
, that Success Academy’s “failures to . . . discipline, or
supervise demonstrated willful deliberate indifference.” Dkt. No. 35 ¶ 115. Under the failure to
supervise or discipline theory, a plaintiff must show “that the [municipal agent] failed to
adequately supervise or discipline its employees (thereby implicitly encouraging or ratifying
their unlawful conduct) . . . [and] that such a failure of supervision or discipline was tantamount
to deliberate indifference.”
Alwan v. City of New York
,
The Court need not and does not consider whether Plaintiffs’ allegations are sufficient to
give rise to municipal liability for any of the underlying alleged constitutional violations claims
by Plaintiffs because Plaintiffs have failed to plead an underlying constitutional violation by a
state actor.
See Segal v. City of New York
,
F. Respondeat Superior
Finally, Plaintiffs attempt to assert a cause of action for
respondeat superior
. Dkt. No. 35
¶¶ 117–119. “The doctrine of
respondeat superior
‘renders a master vicariously liable for a tort
committed by his servant while acting within the scope of his employment.’”
Dilworth v.
Goldberg
,
Defendants contend that this claim should be dismissed because “[a] municipality cannot
be held liable under § 1983 on a
respondeat superior
theory.” Dkt. No. 42 at 22 (quoting
Monell
,
Under New York law, an employer is vicariously liable for the actions of an employee
only where the acts in question are “committed in furtherance of the employer’s business and
within the scope of employment.”
N.X. v. Cabrini Med. Ctr.,
III. Leave to Amend
Federal Rule of Civil Procedure 15(a) directs courts to “freely give leave” to amend a
complaint “when justice so requires.” Fed. R. Civ. P. 15(a). “When a motion to dismiss is
granted, the usual practice is to grant leave to amend the complaint.”
Hayden v. County of
Nassau
,
At this point, the Court cannot find that Plaintiffs’ claims would be futile. “Futility is a
determination, as a matter of law, that proposed amendments would fail to cure prior deficiencies
or to state a claim.”
Empire Merchs., LLC v. Reliable Churchill LLLP
,
CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED and the second, third, fourth, fifth, and sixth causes of action are dismissed without prejudice to the filing of an amended complaint within thirty days of the date of the Court’s Order, by April 5, 2024. Plaintiffs will have sixty days from the date of this Court’s order, by May 6, 2024, to effect service on Defendant Alvarez (if he is named in an amended complaint).
The Clerk of Court is respectfully directed to close Dkt. No. 41.
SO ORDERED. Dated: March 6, 2024 __________________________________
New York, New York LEWIS J. LIMAN United States District Judge
Notes
[2] In their Fifth Cause of Action for municipal and supervisory liability, Plaintiffs also refer to
“the Board of Trustees,” presumably of Success Academy. Plaintiffs do not specify whether the
Board of Trustees is a separate legal entity from Success Academy at all. But Plaintiffs fail to
name or define the Board of Trustees as a defendant in the caption of the FAC. It may well be
the case that “simply naming a defendant in the Complaint” is “generally sufficient to make that
identified defendant a party to the case,”
Steinmetz v. Danbury Visiting Nursing Ass’n
, 2021 WL
4193070, at *3 (D. Conn. Sept. 15, 2021), but here, Plaintiffs do not name the Board of Trustees
as a defendant in the caption of their Complaint. And while a complaint’s caption “itself is
normally not determinative of the identity of the parties,”
E.E.O.C. v. Int’l Ass’n of Bridge,
Structural & Ornamental Ironworkers, Loc. 580
,
[4] “The IDEA requires that an IEP be ‘reasonably calculated to enable the child to receive
educational benefits.’”
R.E. v. N.Y.C. Dep’t of Educ.
,
[5] Plaintiffs do not plead whether the school held an MDR meeting with respect to each suspension individually or discussed several suspensions at a single MDR meeting.
[6] On April 22, Harlem-2 employees informed Blanco that I.B. was not welcome at the school until he was cleared by a psychiatric professional. Dkt. No. 35 ¶ 35. The following day, Blanco took I.B. to Bellevue Hospital, where he was cleared to resume his studies.
[7] The NYSED further found as follows: “the Student’s IEP in effect from May 22, 2022, to present, included a recommendation for individual behavioral paraprofessional services which were to be provided to the Student daily, in school and fulltime[,] and the services of a transportation paraprofessional. However, between August 17, 2022, and November 29, 2022, the individual services of the behavior paraprofessional were not provided on 11 days. The services were not provided during the Student’s lunch and recess hours. As of December 16, 2022, the service of the transportation paraprofessional has not been initiated.” Dkt. No. 35-1 at 5.
[8] Plaintiffs make allegations as to only some of the eight instances. See Dkt. No. 35 ¶¶ 58–64.
[9] Plaintiffs reference the “Success Network” and the “Board of Trustees” in a parenthetical to their fifth cause of action. Dkt. No. 35 at 15. Plaintiffs appear to use “Success Network” interchangeably with Defendant Success Academy at various points throughout the FAC. See, e.g. , Dkt. No. 35 ¶ 1 (referring to Success Academy charter schools as “Success Network”). To the extent that Plaintiffs intend, by referencing the Success Network, to name a defendant other than Success Academy, they have failed to do so. Nor, as previously discussed, have they named or served the Board of Trustees. The Court thus construes the fifth cause of action to be pleaded against only Success Academy and Moskowitz. See Fed. R. Civ. P. 10(a) (“[T]he title of the complaint must name all the parties.”).
[10] Plaintiffs allege their first cause of action—discrimination in violation of § 504 of the
[11] “[W]hile ‘[d]istrict courts have a responsibility to assist
pro se
plaintiffs in their efforts to
serve process on defendants,’ they have no special responsibility to assist represented plaintiffs
in such efforts.”
Labombard v. City of New York
,
[12] Section 1983 “provides a mechanism for enforcing individual rights ‘secured’ elsewhere,
i.e.
,
rights independently ‘secured by the Constitution and laws’ of the United States.”
Gonzaga
Univ. v. Doe
,
[13] Although most of the case law speaks to restraint by a police officer, a defendant need not be a
police officer to face liability under either the Fourth Amendment or New York false
imprisonment law.
See, e.g.
,
New Jersey v. T.L.O.
,
[14] Because police officers were allegedly involved in the encounter, the Court need not consider
now whether a higher standard should be applied in some school settings “that asks not whether
a reasonable person would feel restrained in the plaintiff’s situation—because
all
schoolchildren
are (lawfully) restrained in some sense—but rather whether ‘the limitation on the student’s
freedom of movement . . . significantly exceed[s] that inherent in every-day, compulsory
attendance.’”
Guan N. v. N.Y.C. Dep’t of Educ.
,
[15] The other instances in which the FAC alleges that I.B. had the police called on him do not
identify an individual actor responsible for calling the police.
See, e.g.
, Dkt. No. 35 ¶ 59
(“Blanco was informed by Defendant Cohen that 911 was called due to I.B.’s behavior.”);
id.
¶ 61 (“On February 22[,] Harlem-2 staff again called 911 to have the police and EMS come to
pick up I.B.”);
id.
¶ 62 (“On April 3, 2023, Harlem-2 staff again called 911 to have the police
and EMS come to pick up I.B.”);
id.
¶ 63 (“On April 13, Harlem-2 staff again called 911 on
I.B.”). Because a plaintiff asserting false arrest or imprisonment must “name as defendants the
individuals who were directly and personally involved in the constitutional deprivation” or at
least state claims against unknown defendants as John or Jane Does, and Plaintiffs only list “John
Doe ##1-4” in the caption of the FAC without making any allegations regarding the unnamed
parties, they fail to state a claim as a matter of law.
See, e.g.
,
Raysor v. City of New York
, 2021
WL 230296, at *4 (E.D.N.Y. Jan. 21, 2021) (dismissing claims against unknown defendants
where the plaintiff had “not connected any of her factual allegations to any unidentified
individual Defendant”);
see also McDaniel v. New York
,
[16] Indeed, the FAC alleges a course of conduct beginning the previous academic year that show that Harlem-2 employees, including Cohen, did not want I.B. to remain enrolled at the school by stating to Blanco that I.B. was not normal, Dkt. No. 35 ¶ 28, suggesting that in March 2022, I.B. had accrued forty days of suspensions rather than thirty, id. ¶ 31, and poking him in the eye, id. ¶ 39.
[17] At least one court has stated that “[t]o state a false arrest claim under § 1983 on an instigation
of false arrest theory against a private defendant based on the provision of false information to
the police, the plaintiff also must allege bad faith.”
Bertuglia
,
[18] Because of the Court’s disposition of Plaintiffs’ false arrest claim, it does not address Defendants’ arguments that any alleged seizure was justified and reasonable in scope and that Cohen and Alvarez are entitled to qualified immunity. See Dkt. No. 42 at 11–13.
[19] “There is no recognized claim for intentional infliction of emotional distress under section
1983.”
Schisler v. City of Rome
,
[20] The New York Court of Appeals has opted to read the tort of intentional infliction of
emotional distress narrowly because, “[u]nlike other intentional torts, intentional infliction of
emotional distress does not proscribe specific conduct . . . , but imposes liability based on after-
the-fact judgments about the actor’s behavior. Accordingly, the broadly defined standard of
liability is both a virtue and a vice. The tort is as limitless as the human capacity for cruelty.
The price for this flexibility in redressing utterly reprehensible behavior, however, is a tort that,
by its terms, may overlap other areas of the law, with potential liability for conduct that is
otherwise lawful. Moreover, unlike other torts, the actor may not have notice of the precise
conduct proscribed.”
Howell
,
[24] Plaintiffs rely upon Judge Irizarry’s decision in
V.S. ex rel. T.S. v. Muhammad
, 581 F. Supp.
2d 365, 391 (E.D.N.Y. 2008), in which the court dismissed an abuse of process claim brought
against City defendants for initiating family court proceedings against the parent plaintiffs while
permitting the claim against private defendants to go forward. The court there relied upon and
quoted from the New York Court of Appeals decision in
Dean v. Kochendorfer
,
[25] Defendants argue that a Section 1983 claim may not be predicated on a claim of malicious
abuse of civil process. Dkt. No. 42 at 16–17. The Second Circuit has so stated on numerous
occasions.
See, e.g.
,
Cook
,
[26] The parties have served initial disclosures, initial requests for production of documents, and interrogatories, but, as noted, further discovery was stayed at the request of the parties. Dkt. Nos. 50–51.
[27] The Court denies Plaintiffs’ request to order Defendants to provide an address where Alvarez may be served but will permit Plaintiffs to use the tools of civil discovery, within reason, to obtain such information.