DECISION and ORDER
Currently before the Court, in this civil rights action filed by Administrator Amy Briggs (“Plaintiff’) on behalf of the estate of D.B. (a student with a disability) against the Thousand Islands Central School District (“the District”) and various of its officials (together, “Defendants”) pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”), Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1983, the Fourteenth Amendment, the Individuals with Disabilities Education Act (“IDEA”), New York State
I. RELEVANT BACKGROUND
A. Plaintiffs Complaint
Generally, liberally construed, Plaintiffs Complaint asserts eight causes of action. (Dkt. No. 1 [Pl.’s Compl.].) First, Plaintiff claims that Defendants Thousand Island Central School District (“TICSD”), Frank House, John P. Warneek and Joseph Gilfus violated Section 504 of the Rehabilitation Act and Title II of the ADA. (Id. at ¶¶ 169-76.)
Second, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck and Joseph Gilfus violated 42 U.S.C. § 1983 and the Fourteenth Amendment through their deliberate indifference to students’ harassment of D.B. (Id. at ¶¶ 177-93.)
Third, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus violated the IDEA. (Id. at ¶¶ 194-97.)
Fourth, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus violated N.Y. Education Law § 12 and DASA. (Id. at ¶¶ 198-201.)
Fifth, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus violated N.Y. Education Law § 801-a. (Id. at ¶¶ 202-06.)
Sixth, Plaintiff claims that TICSD and the Board of Education are liable for negligent supervision. (Id. at ¶¶ 207-13.)
Seventh, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus are liable for intentional infliction of emotional distress (“IIED”). (Id. at ¶¶ 214-19.)
Eighth, and finally, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneek, and Joseph Gilfus are liable for negligent infliction of emotional distress (“NIED”). (Id. at ¶¶ 220-26.)
B. Parties’ Briefing on Defendants’ Motion to Dismiss
1. Defendants’ Arguments
Generally, Defendants move to dismiss Plaintiffs Complaint for five reasons. (Dkt. No. 11, Attach. 2 [Defs.’ Mem. of Law].) First, Defendants move to dismiss Plaintiffs federal claims for lack of subject-matter jurisdiction, because Plaintiff has failed to exhaust her administrative remedies with regard to those claims. (Id. at 3.) The federal claims consist of the first three causes of action listed above in Part I.A. of this Decision and Order.
Second, Defendants move to dismiss Plaintiffs state claims for lack of supplemental jurisdiction, because of the Court’s dismissal of her federal claims. (Id. at 6.) The state claims consist of the remaining causes of action listed above in Part I.A. of this Decision and Order.
Third, Defendants move to dismiss all claims to the extent that they involve acts occurring before April 20, 2012, because the statute of limitations governing those claims has run. (Id. at 7.)
Fourth, Defendants move to dismiss the claims asserted under DASA, N.Y. Educ. Law § 11, and N.Y. Educ. Law 801-a,
Fifth, and finally, Defendants move to dismiss Plaintiffs claims of negligent supervision, IIED, and NIED for failure to state a claim upon which relief can be granted. {Id. at 10-13.)
2. Plaintiffs Response
Generally, Plaintiff opposes Defendants’ motion to dismiss for two reasons. (Dkt. No. 15, Attach. 3 [Pl.’s Opp’n Mem. of Law].) First, Plaintiff argues that the Court has subject-matter jurisdiction over her federal claims, because (a) it would have been futile for her to have tried to exhaust her administrative remedies with regard to those claims, and (b) her federal claims, which are based on misconduct by Defendants that continued until D.B.’s suicide, are timely. (Id. at 4-9.)
Second, Plaintiff argues that her Complaint states claims for relief for negligent supervision and NIED under state law. {Id. at 10.)
3. Defendants’ Reply
Generally, in reply to Plaintiffs response, Defendants assert two arguments. (Dkt. No. 16 [Defs.’ Reply Mem. of Law].) First, Defendants argue that D.B.’s suicide does not retroactively make timely Plaintiffs resort to the idea that her exhaustion of administrative remedies would have been “futile.” (Id. at 2-9.)
Second, Defendants argue that Plaintiff misconstrues Defendants’ argument regarding her claim of NIED. (Id. at 18-19.)
C. Parties’ Briefing on Plaintiffs Cross-Motion to Amend
1. Plaintiffs Arguments
As part of her response to Defendants’ motion to dismiss, Plaintiff has filed a cross-motion for leave to amend her Complaint. (Dkt. No. 15, at 12-17 [Pl.’s Opp’n Mem. of Law].) Plaintiffs affirmation in support of her cross-motion explains that she intends to amend her Complaint “to assert gender discrimination claims under Title IX, 42 U.S.C. § 1983 and New York Civil Rights Law §§ 40-e and 40-d.” (Dkt. No. 15, Attach. 1, at 1 [Pl.’s Affirm.].) In addition, Plaintiff seeks to withdraw four claims that were present in her original Complaint: (1) her DASA claim; (2) her claim under N.Y. Educ. Law § 12; (3) her claim under N.Y. Educ. Law § 801-a; and (4) her IDEA claim. (Dkt. No. 15, Attach. 2 [Proposed Am. Compl.].)
More specifically, Plaintiffs proposed Amended Complaint asserts eleven causes of action. (Id.) First, Plaintiff claims that TICSD and the Board of Education violated Section 504 of the Rehabilitation Act. (Id. at ¶¶ 169-76.) Plaintiffs proposed Amended Complaint therefore removes Frank House, John P. Warneck, and Joseph Gilfus from the § 504 cause of action, and adds the Board of Education.
Second, Plaintiff claims that Defendants TICSD, Frank House, John P. Warneck, and Joseph Gilfus violated Title II of the ADA. (Id. at ¶¶ 177-84.) This cause of action appears in Plaintiffs original Complaint, but has been separated from the first cause of action and amended to include additional facts. (Id. at ¶¶ 180-83.)
Third, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus violated 42 U.S.C. § 1983 and the Fourteenth Amendment for discrimination involving D.B.’s disability. (Id. at ¶¶ 185-92.) This cause of action has also been amended to include additional facts. (Id. at ¶¶ 186-91.)
Fourth, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus violated 42 U.S.C. § 1983 and the Fourteenth Amendment for discrimination involving D.B.’s actual or perceived sexual orientation.
Fifth, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus violated 42 U.S.C. § 1983 and the Fourteenth Amendment for discrimination involving D.B.’s sex. (Id. at ¶¶ 202-10.) This cause of action appears for the first time in the proposed Amended Complaint.
Sixth, Plaintiff claims that TICSD and the Board of Education violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et. seq., for discrimination based on D.B.’s sex. (Id. at ¶¶ 211-17.) This cause of action appears for the first time in the proposed Amended Complaint.
Seventh, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus violated New York Civil Rights Law §§ 40-c and 40-d, for discrimination based on D.B.’s actual or perceived sexual orientation. (Id. at ¶¶ 218-24.) This cause of action appears for the first time in the proposed Amended Complaint.
Eighth, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneek, and Joseph Gilfus violated New York Civil Rights Law §§ 40-c and 40-d, for discrimination based on D.B.’s sex. (Id. at ¶¶ 225-31.) This cause of action appears for the first time in the proposed Amended Complaint.
Ninth, Plaintiff claims that TICSD and the Board of education are liable for negligent supervision. (Id. at ¶¶ 232-38.) This cause of action is unchanged from the original Complaint.
Tenth, Plaintiff claims that TICSD; the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus are liable for IIED. (Id. at ¶¶ 239-44.) This cause of action is unchanged from the original Complaint.
Eleventh, and finally, Plaintiff claims that TICSD, the Board of Education, Frank House, John P. Warneek, and Joseph Gilfus are hable for NIED. (Id. at ¶¶ 245-51.) This cause of action is unchanged from the original Complaint.
2. Defendants’ Response
Generally, Defendants oppose Plaintiffs cross-motion to amend her Complaint for two reasons. (Dkt. No. 16 [Defs.’ Reply Mem. of Law].) First, Defendants argue that Plaintiffs request should have been made as an independent motion, and not a cross-motion. (Id. at 9.) Second, Defendants argue that the amendment is futile to the extent that (1) it seeks to add untimely claims under N.Y. Civil Rights Law §§ 40-c and 40-d, (2) it seeks to add claims of a hostile education environment due to gender-based harrassment, and (3) it seeks to preserve Plaintiff’s IIED claim, which (Defendants argue) was expressly withdrawn. (Id. at 11-18.)
3. Defendants’ Supplemental Response
As indicated above, one of Defendants’ objections to Plaintiffs cross-motion is that offering a motion to amend as a cross-motion deprives them of a full and fair opportunity to be heard on the issue, due to page number constraints on their reply/opposition memorandum of law. (Id. at 10.) As a result, out of an abundance of caution, the Court issued a Text Order on January 21, 2016, allowing Defendants a reasonable opportunity to supplement their reply/opposition memorandum of law, to curé any prejudice to them. (Dkt. No. 18.)
Generally, in their supplemental papers, Defendants assert' seven arguments against allowing the proposed Amended Complaint. (Dkt. No. 19 [Defs.’ Suppl. Reply/Opp’n Mem. of Law].) First, Defen
Third, Defendants argue that the proposed amendments are futile to the extent that they fail to state Section 1983 claims against Defendants House and Warneck. (Id. at 6.)
Fourth, Defendants argue that the proposed amendments are futile with regard to N.Y. Civil Rights Law §§ 40-c and 40-d because those claims were not set out in a timely notice of claim. (Id. at 7.)
Fifth, Defendants argue that the claims against the individual Defendants in their official capacities are futile. (Id. at 8.)
Sixth, Defendants argue that the proposed amendments are futile to the extent that they fail to state a claim based on sexual orientation discrimination. (Id. at 9.)
Seventh, and finally, Defendants argue that the proposed amendments are futile to the extent that they request unavailable punitive damages against a municipality. (Id.)
II. GENERAL LEGAL STANDARDS
Because the parties have (in their mem-oranda of law) demonstrated an adequate understanding of the legal standards governing their motions, Plaintiffs’ claims and the doctrine and theories asserted by both parties, the Court will not recite those legal standards in this Decision and Order, which is intended primarily for the review of the parties.
III. ANALYSIS
A. Exhaustion of Administrative Remedies
As explained above, generally, Defendants move to dismiss Plaintiffs Complaint for lack of subject-matter jurisdiction because Plaintiff did not exhaust her administrative remedies before filing suit; and, in response, Plaintiff argues that exhaustion should be excused as futile because D.B. committed suicide and therefore Plaintiff cannot receive adequate remedies from the administrative process. (Dkt. No. 11, Attach. 2, at 3-6; Dkt. No. 15 Attach. 3, at 4-9.) After careful consideration, the Court denies' Defendants’ motion for the reasons stated by Plaintiff. To those reasons, the Court adds the following analysis.
“It is well settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court.” J.S. ex rel. N.S. v. Attica Cent. Sch.,
If a plaintiff has failed to meet the exhaustion requirement, the district court does not have subject-matter jurisdiction over the action. Cave v. E. Meadow Union Free Sch. Dist.,
If a plaintiff can demonstrate that there is no relief available to her through the administrative process, then exhaustion is futile. Taylor v. Vt. Dep’t of Educ.,
In opposition to Plaintiffs argument that exhaustion was futile because D.B. committed suicide, Defendants analogize the facts of this case to those of Polera, and argue that administrative remedies were available “at the time of the alleged wrongdoing.” (Dkt. No. 16, at 5.) In so doing, Defendants argue that D.B.’s suicide is not the wrongdoing alleged, asserting, “By its very definition, suicide is a self-regarding act, not an act committed by one entity upon another. The Defendants did not ‘suicide’ D.B. He committed suicide upon his own person.” (Dkt. No. 16, at 6.) With due respect to Defendants, this argument ignores the language of Polera. “Relief available” for the purposes of futility “means ‘relief for the events, condition, or consequences of which the person complains[.]’ ” Polera,
Defendants also argue that the Court must dismiss Plaintiffs Complaint because to not do so would render the IDEA “meaningless, and easily circumvented.” (Dkt. No. 16, at 5.) Defendants imply that Plaintiff is in the same position as the plaintiff was in Polera. The Court distinguishes the facts of this case from those of Polera. The plaintiff in Polera was a visually impaired student who had waited until her senior year of high school to sue the school for failing to provide her with accommodations while she was enrolled. Polera,
This case, however, presents facts that do not implicate the same risks implicated in Polera. A court finding that suicide renders exhaustion futile cannot fairly be said to encourage parents of bullied children to “sit on” a live claim, wait for their children to commit suicide, and then sue for damages. Simply stated, suicide is not the same as graduation.
Moreover, if the Court were to consider those portions of the proposed Amended Complaint that it permits to be filed in Part III.C. of this Decision and Order, then the Court would find an alternative ground for concluding that exhaustion would have been futile. The Second Circuit has held that, where a natural parent sues on behalf of her disabled child, and that parent was not aware of the cause of action until after administrative remedies could provide no adequate relief, exhaustion may be excused. Taylor,
Defendants criticize Plaintiffs argument for lack of in-circuit precedent and its reliance on persuasive, rather than mandatory, authority. (Dkt. No. 16, at 6.) However, it appears that this particular issue— whether suicide excuses a failure to exhaust administrative remedies under the IDEA — has never been decided by the Second Circuit. The district courts that have addressed the issue have found that exhaustion was futile. Moore v. Chilton Cnty Bd. of Educ.,
Finally, to hold that exhaustion was not futile in these circumstances would appear to lead to an absurd result. If a child were to attempt suicide and survive, then his parents could exhaust their administrative remedies and file suit. However, if a child were to attempt suicide and not survive,' then his parents could not exhaust their administrative remedies and file suit. See Taylor,
As explained above, Defendants move to dismiss Plaintiffs state law claims for lack of supplemental jurisdiction, based entirely on their argument concerning jurisdiction over the federal law claims. (Dkt. No. 11, Attach. 2, at 6-7 [Defs.’ Mem. of Law].) Because the Court has determined that it has subject-matter jurisdiction over the federal law claims (see, supra, Part III.A. of this Decisions and Order), the Court denies this aspect of Defendants’ motion.
C. Cross-Motion to Amend
As explained above, Defendants oppose Plaintiffs cross-motion to amend on a number of grounds, most notably the ground of futility. (Dkt. Nos. 16, 19.) After careful consideration, Plaintiffs motion is denied to the extent that the proposed amendments are futile, as argued by Defendants; however, otherwise Plaintiffs motion is granted. To the futility arguments asserted by Defendants, the Court adds the following analysis.
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend shall be freely given. Fed.R.Civ.P. 15(a). Notwithstanding this rule, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced, or (4) would be futile. Foman v. Davis,
1. New York Civil Rights Law §§ 40-c and 40-d
Defendants argue that Plaintiffs proposed addition of two claims under N.Y. Civil Rights Law §§ 40-c and 40-d (Dkt. No. 15, Attach. 2, at ¶¶ 218-24) is futile because (1) the claims are untimely, and (2) the claims were not included in a timely notice of claim. (Dkt. No. 16, at 11; Dkt. No. 19, at 7.)
Claims under N.Y. Civil Rights Law §§ 40-c and 40-d must be included in a notice of claim in order to avoid dismissal. Preston v. Hilton Cent. Sch. Dist.,
Defendants correctly point out that Plaintiffs proposed claims under §§ 40-c and 40-d are not included in either the original or the amended notice of claim that Plaintiff served on Defendants. (Dkt. No. 19, Attach. 2; Dkt. No. 19, Attach. 4.) Furthermore, the Court lacks the power to allow Plaintiff to serve a new notice of claim, because the statute of limitations has run. Pierson v. New York, 56 N.Y.2d
2. Title IX Claim
Defendants argue that Plaintiffs proposed addition of gender discrimination claims under Title IX (Dkt. No. 15, Attach. 2, at ¶¶ 211-17) is futile for two reasons. First, Defendants argue that Plaintiff has tried to “shoehorn” sexual orientation discrimination into gender discrimination protections. (Dkt. No. 19, at 5 [Defs.’ Suppl. Reply/Opp’n Mem. of Law].) Second, Defendants argue that the proposed Amended Complaint does not state a claim of gender discrimination based on gender stereotyping. (Id.).
It is settled law that, to survive a Fed.R.Civ.P. 12(b)(6) motion, a complaint must contain more than “mere conclusory statements” to support its causes of action. Ashcroft v. Iqbal,
However, Plaintiffs Title IX claim is not based only on gender-related slurs. Plaintiff argues that her Title IX claim is also supported by alleged homophobic slurs that constitute “gender stereotyping.” (Dkt. No. 15, Attach. 3, at 13 [Pl.’s Mem. of Law].) Defendants reply that Plaintiff is merely trying to “bootstrap protection for sexual orientation.” (Dkt. No. 16, at 16 [Defs.’ Reply Mem. of Law, quoting Dawson v. Bumble & Bumble,
The Second Circuit recognizes a fine line between gender stereotyping and bootstrapping protection for sexual orientation. Because a Title IX sex discrimination claim is treated in much the same way as a Title VII sex discrimination claim, Title VII jurisprudence therefore applies. Papelino v. Albany College of Pharmacy of Union Univ.,
The critical fact under the circumstances is the actual sexual orientation of the harassed person. If the harassment consists of homophobic slurs directed at a homosexual, then a gender-stereotyping
While Plaintiff may have failed to allege facts plausibly suggesting any gender-related slurs, the Complaint and proposed Amended Complaint are replete with allegations of homophobic slurs. (See, e.g., Dkt. No. 15, Attach. 2, at ¶ 130.) The question is whether the pleadings alleged facts plausibly suggesting that D.B. was homosexual. They appear to allege that D.B. was not. For example, D.B.’s own alleged statements refer to accusations that he was homosexual as “stupid gay rumours [sic ].” (Id. at ¶ 3.) Moreover, the Amended Complaint alleges that the bullying was based on D.B.’s “actual or perceived sexual orientation” and his “perceived and/or presumed sexual orientation.” (Id. at ¶¶ 4, 5, 37, 40, 132, 163, & n.1 [emphasis added].) Under the circumstances, the Amended Complaint alleges facts plausibly suggesting a gender-stereotyping claim to survive a Fed.R.Civ.P. 12(b)(6) motion; and the amendment to include this claim is not futile. As a result, Plaintiffs cross-motion to amend is granted to as to the inclusion of the Title IX claim (in the sixth cause of action of the proposed Amended Complaint).
3. Intentional Infliction of Emotional Distress
Defendants argue that the proposed Amended Complaint should not include the claim for IIED, because Plaintiff has explicitly withdrawn that claim. (Dkt. No. 16, at 18.) The statement to which Defendants refer is contained in a footnote in Plaintiffs opposition memorandum of law, and is as follows: “As defendants note, state law prohibits IIED claims against public entities. Lauer v. City of New York,
4. Section 1983 Claims Against Defendants House and Warneck
Defendants argue that the proposed Amended Complaint fails to state a claim under 42 U.S.C. § 1983 against Defendants House and Warneck. (Dkt. No. 19, at 6.) In order to state a claim against individual school administrators under the Equal Protection Clause through a Section 1983 claim, a plaintiff must allege facts plausibly suggesting (a) that those particular defendants had actual knowledge that the misconduct in question (here, bullying) was directed at an individual because of his or her protected status, and (b) that the administrators were deliberately indifferent to the misconduct. DiStiso v. Cook,
Defendants argue that the proposed Amended Complaint is futile to the extent that it seeks to add claims against Defendants Warneck, House, and Gilfus in their official capacities. (Dkt. No. 19, at 8.)
Officials in their official capacity are not considered persons subject to liability under Section 1983, although they may be sued in their individual capacity. Will v. Michigan Dep’t of State Police,
6.Sexual Orientation Discrimination
Defendants argue that the proposed amendment adding a sexual orientation discrimination claim under the Equal Protection Clause and Section 1983 (the fourth cause of action in the proposed Amended Complaint) is futile because it fails to state a claim for sexual orientation discrimination. (Dkt. No. 19, at 9.) .
To state a claim under the Equal Protection Clause, a plaintiff may either “alleg[e] discrimination based on membership in a protected class,” or allege a “class of one” claim. See Neilson v. D’Angelis,
7.Punitive Damages
Defendants argue that • the proposed Amended Complaint would be futile to the extent that it requests punitive damages on its new claims. (Dkt. No. 19, at 10.) The Court notes that the proposed Amended Complaint does not differentiate between the municipal and individual Defendants in the “Prayers for Relief’ section (Dkt. No. 15, Attach. 2, at 44), and also that Plaintiff is suing the three individual Defendants in their individual capacities (Dkt. No. 15, Attach. 2, at ¶¶ 26-28). Punitive damages are not available in Section 1983 actions against municipalities, unless expressly authorized by statute. City of Newport v. Fact Concerts, Inc.,
In sum, the Court denies Plaintiffs cross-motion to amend in part, as discussed in the above seven rulings. More specifically, Plaintiffs cross-motion is denied (and the proposed amendments rejected) with respect to the following: (1) the New York Civil Rights Law §§ 40-e and 40-d claims (in the seventh and eighth causes of action); (2) the IIED claim which was previously withdrawn (in the tenth cause of action); (3) the sexual orientation discrimination claim (in the fourth cause of action); (4) the inclusion of Defendants House and Warneck in the remaining Section 1983 claims (in the third and fifth causes of action); and (5) all claims against Defendants Gilfus, House, and Warneck in their official capacities. The cross-motion to amend is otherwise granted, and all remaining proposed amendments are accepted. The Court shall construe Defendants’ remaining arguments to dismiss as they apply to the remaining claims.
D. Statutes of Limitations
Defendants move to dismiss the Complaint “to the extent [Plaintiff seeks] recovery upon acts outside the relevant statutes of limitations.” (Dkt. No. 11, Attach. 2, at 7.) Plaintiff argues that, given the nature of the wrongdoing alleged in this case, the continuing violations doctrine should apply. (Dkt. No. 15, Attach. 3, at 8.) The Court notes that Defendants had the opportunity to respond to Plaintiffs argument but chose not to specifically do so. (See generally Dkt. No. 16, at 2-9.) Under the circumstances, the Court assumes that this aspect of Defendants’ motion applies to the claims that survived the Court’s analysis above in Part III.C. of this Decision and Order. After carefully considering the matter, the Court denies this aspect of Defendants’ motion for the reasons stated by Plaintiff. To those reasons, the Court adds the following analysis.
The continuing violation doctrine is a product of Title VII hostile work environment jurisprudence. Under that doctrine, if a plaintiff has experienced a “ ‘continuous practice and policy of discrimination, ... the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.’ ” Gomes v. Avco Corp.,
Although the continuing violation doctrine is usually associated with a dis
The Second Circuit has expanded the doctrine to include claims outside of Title VII. See Shomo v. City of New York,
The issue presented to the Court is complicated by the amendment of the Complaint. The proposed Amended Complaint has withdrawn the IDEA claim and added numerous claims under 42 U.S.C. § 1983. (Dkt. No. 15, Attach. 2, at ¶¶ 193-210.) As discussed above in Part III.A. of this Decision and Order, Plaintiff has brought this suit not because of isolated incidents of discrimination, but because of an alleged ongoing pattern of indifference that resulted in her son’s death. Given that Plaintiff now asserts Section 1983 claims involving discriminatory conduct, the Court applies the continuing violation doctrine, and denies this aspect of Defendants’ motion.
E. Negligent Supervision
Defendants move to dismiss Plaintiffs negligent supervision claim on the ground that she has failed to state a claim. (Dkt. No. 11, Attach. 2, at 10.) Generally, Defendants assert two arguments: (1) that the claim fails because D.B. committed suicide at home, and (2) that the emotional harm complained of occurred outside the statute of limitations period. (Id.) Plaintiff concedes the merit of the first argument, and does not request relief under this cause of action for D.B.’s suicide, but rather requests relief for emotional distress caused by the harassment itself. (Dkt. No. 15, Attach. 3, at 11.) However, Plaintiff argues that she has alleged the re
In support of their argument that the alleged emotional distress was caused more than two years before Plaintiff brought suit, Defendants argue that D.B.’s 2012 hospitalization for depression precludes any emotional distress caused thereafter. (Dkt. No. 11, Attach. 2, at 10.) Defendants argue that “Plaintiffs cannot recover for the alleged injuries of D.B.’s ‘mental state and depression’ because such claim is barred by the statute of limitations-‘[a] person’s mental well-being can be destroyed only once.’” (Id.)
However, the case Defendants cite for this proposition, Doe v. Allstate Ins. Co., concerned the issue of whether homeowner’s insurance for general liability covers actions of physical, emotional, psychological, and sexual abuse by the homeowner on his daughter. Doe v. Allstate Ins. Co.,
Again with due respect to Defendants, that case does not discuss suicide, negligent supervision, the liability of schools, hospitalization, or any other of the facts or legal theories that are relevant to this case. In fact, the case confirms that Plaintiff has presented her claim properly: she correctly alleged one combined cause of action for all the acts of abuse that Defendants had knowledge of but chose not to remedy.
“It is well settled that schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” Doe ex rel. Doe v. Bd. of Ed. of Morris Cent. Sch.,
Here, the Court finds that Plaintiff has stated a claim for negligent supervision. Taking the facts in the proposed Amended Complaint as true, Defendants knew of the ongoing bullying and failed to remedy that bullying. In particular, Plaintiff alleges that she had a conversation with Defendant Gilfus in which she warned him that D.B. might commit suicide if the bullying did not stop, but that thereafter Defendants failed to punish the bullies. (Dkt.
F. Negligent Infliction of Emotional Distress
Finally, Defendants move to dismiss Plaintiffs NIED claim as duplicative of her negligent supervision claim, and for reasons similar to those for the dismissal of Plaintiffs negligent supervision claim. (Dkt. No. 16, at 18.) Insofar as this argument mirrors Defendants’ argument for the dismissal of Plaintiffs negligent supervision claim, it is rejected for the reasons stated above in Part III.E. of this Decision and Order. Defendants’ other argument, that the claim is duplicative, also fails. The elements of a claim for NIED in New York are different from the elements of a claim of negligent supervision of other students. Compare Jun Chi Guan v. Tuscan Dairy Farms,
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 11) is DENIED; and it is further
ORDERED that Plaintiffs cross-motion to amend (Dkt. No. 15) is GRANTED in part and DENIED in part, consistent with Part III of this Decision and Order; and it is further
ORDERED that, following the parties’ motions, the following six claims remain pending in this action:
(1) Plaintiffs claims against TICSD and the Board of Education under Section 504 of the Rehabilitation Act;
(2) Plaintiffs claims against TICSD, Frank House, John P. Warneck, and Joseph Gilfus under Title II of the ADA;
(3) Plaintiffs claims against TICSD, the Board of Education, and Joseph Gil-fus under 42 U.S.C. § 1983 and the Fourteenth Amendment for discrimination involving D.B.’s disability and D.B.’s failure to conform to gender stereotypes;
(4) Plaintiffs claims against TICSD and the Board of Education under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et. seq., for discrimination involving D.B.’s failure to conform to gender stereotypes;
(5) Plaintiffs claims against TICSD and the Board of education for negligent supervision; and
(6) Plaintiffs claims against TICSD, the Board of Education, Frank House, John P. Warneck, and Joseph Gilfus for negligent infliction of emotional distress; and it is further
ORDERED that Plaintiff shall, within SEVEN (7) DAYS from the date of filing of this Order, file and serve a signed copy of her Amended Complaint, revised so as to be consistent with this Decision and Order; and it is further
ORDERED that Defendants shall file an answer to Plaintiffs revised Amended Complaint within FOURTEEN (14) DAYS from the date that Plaintiff flies her revised Amended Complaint, in accordance with Fed.R.Civ.P. Rule 12(a)(4)(A); and it is further
ORDERED that this case is referred back to Magistrate Judge Baxter for a