Case Information
*1 ‐ ‐ cv ‐ NYC Dep’t Educ. UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At term United States Appeals Second Circuit, Thurgood Marshall United States Courthouse, Foley Square, City New York, th day October, two thousand seventeen.
PRESENT: AMALYA L. KEARSE,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges . ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ JEENA LEE ‐ WALKER,
Plaintiff ‐ Appellant , No. cv
NEW YORK CITY DEPARTMENT OF
EDUCATION, FRED WALSH, individually,
STEPHEN NOONAN, individually,
CHRISTOPHER YARMY, individually, BENNY UREANA, individually,
Defendants Appellees . ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ *2 FOR APPELLANT: S TEPHEN B ERGSTEIN , Bergstein & Ullrich, LLP, New Paltz, NY. APPELLEES: J ONATHAN A. P OPOLOW (Jane Lori Gordon, the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY. Appeal from judgment of the United States District Court the Southern District New York (John G. Koeltl, Judge). UPON DUE CONSIDERATION, it ORDERED, ADJUDGED, AND DECREED judgment District Court AFFIRMED.
Jeena Walker appeals judgment (Koeltl, J.) dismissing under U.S.C. § New York City Department Education (“DOE”) and individual defendants Fred Walsh, Stephen Noonan, Christopher Yarmy, Benny Ureana. The engage protected alternative entitled actions. assume parties’ familiarity facts record prior proceedings, refer necessary explain affirm.
Citing Ceballos, argues First Amendment does not protect speech about “Central Park Five” case because she not “speak as a citizen addressing matters public concern.” U.S. In Garcetti, Supreme where employee does not speak as citizen a matter public importance, “the employee has First Amendment cause action based his employer’s reaction speech.” Id. at 418. As explained, “when public employees make statements pursuant their official duties, employees are not speaking citizens purposes, Constitution does not insulate their communications employer discipline.” Id. at 421. responds pre involving speech
educators, Hazelwood School Kuhlmeier, (1988), not Garcetti, controls this case. Under standard, determine limits content school sponsored are “reasonably related legitimate pedagogical concerns.” Id. conclude are entitled because alleged conduct “does violate clearly established statutory rights reasonable person would *4 known.” Mullenix v. Luna, S. Ct. 305, 308 (2015) (quotation marks omitted). “To determine whether right clearly established, we look (1) whether the right was defined reasonable specificity; (2) whether Supreme or court appeals case law supports existence the right question, (3) whether under preexisting law reasonable defendant would have understood that his her acts unlawful.” Scott v. Fischer, F.3d 100, (2d Cir. 2010). “We do require directly point, but existing precedent must have placed statutory question beyond debate.” Ashcroft al–Kidd,
Neither Garcetti nor clearly governs this case. In directly addressing issue, we explicitly “[i]t open question this Circuit Garcetti applies classroom instruction,” we chose “not [to] resolve issue.” Panse Eastwood, F. App’x 934– (2d Cir. 2008). reason, there was clearly established law premised under defendants would understand was protected Amendment, defendants could reasonably believed stripped those protections. Because decide claims basis *5 immunity, we need reach issue of whether in fact applies speech made by educators a matter. See Pearson v. Callahan, 555 223, 236 Nor it clear how, if at all, displaces Hazelwood in Silano v. Sag Harbor Union Free School Board of Education, F.3d (2d Cir. 1994), also relies, in context speech a public school teacher. Hazelwood, after all, resolved very different question school officials could restrict student contributions a school sponsored newspaper, even without threat imminent disruption. And in Silano we applied standard in guest lecturer at public high school concluded school had legitimate pedagogical reasons restricting issue. F.3d at these reasons agree Court’s dismissal individual qualified immunity grounds.
Because available individuals sued damages capacity, Soto Gaudett, F.3d 148, (2d Cir. 2017), it has bearing DOE’s liability. may be liable if it has “adopt[ed] customs policies violate federal law result tortious violation plaintiff’s rights.” Askins Doe No. F.3d (2d Cir. *6 2013); see Monell Dep’t Soc. Servs., U.S. 690–91 (1978). We conclude that Lee ‐ Walker’s allegations that acted pursuant to its practices, customs, policies are insufficient to state plausible Monell claim DOE. See Ashcroft Iqbal, 678–79 Lee ‐ Walker also argues she should have been allowed to amend her complaint introduce requests for equitable relief DOE. However, District Court denied her motion leave amend moot, noting argument Lee Walker “that she did not seek file amended complaint if her First Amendment was dismissed.” App’x does not contend she so state; claims properly dismissed reasons discussed above; therefore there was abuse discretion Court’s denial leave amend. considered remaining arguments conclude
they are without merit. foregoing reasons, judgment AFFIRMED. THE COURT:
Catherine O’Hagan Wolfe, Clerk