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TURANO v. BOARD OF EDUC. OF ISLAND TREES UNION FRE

February 2, 1976

JOHN TURANO, Plaintiff,
v.
BOARD OF EDUCATION OF ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26, and RICHARD AHRENS, WILLIAM RICHTER, JOHN LIBERATORE, FRANK MARTIN, RICHARD MELCHERS, JOHN LIVELY, and CHRISTINE FASULLO, individually and as members of the Board of Education of Island Trees Union Free School District No. 26, Defendants



The opinion of the court was delivered by: PLATT

PLATT, D.J.

 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants have moved for summary judgment dismissing the plaintiff's action herein on the ground that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law. Plaintiff in turn has cross-moved for summary judgment on the same ground.

 Neither party served or filed Rule 9(g) statements as required by the General Rules of this Court and ordinarily the Court would deny both motions on this ground alone. However, the affidavits and other papers served and filed herein clearly indicate that there are material facts which are in sharp dispute and while some questions of law are resolved, at least for the present, herein, there are also questions of fact which must await the trial.

 Defendants assert that their motion is based upon the following:

 
"(a) The defendant, board of education or school district, is not a 'person' within the meaning of U.S.C. 42 Section 1983 and the Court therefor does not have jurisdiction of either the corporate or individual defendants for the purpose of the relief requested.
 
(b) The sovereign immunity guaranteed by the Eleventh Amendment extends to the defendants herein and bars this action.
 
(c) The individual board member defendant's actions are protected by a qualified good faith immunity.
 
(d) Since the plaintiff has not exhausted his administrative remedies and since the questions involved are primarily of state law the Court should abstain from accepting jurisdiction.
 
(e) Defendants Liberatore, Lively, Richter and Fasuolo have been improperly joined as defendants herein.
 
(f) Plaintiff's complaint does not show the existence of such 'property' or 'liberty' rights as to entitle him to the protection afforded by the Fourteenth Amendment.
 
(g) If plaintiff's complaint has shown a prima facie violation of the U.S. Constitution or of U.S.C. 42 Section 1983 such has been controverted by the proofs annexed hereto."

 Certain facts are undisputed; namely, that plaintiff is a duly licensed teacher; that he was employed by the Island Trees Union Free School District No. 26; that during the course of his probationary service he was rated satisfactory, and given excellent evaluations by his principal; and that based upon such rating the Superintendent of the District, Richard Morrow, recommended that he be given tenure. Plaintiff's original probationary appointment was made on January 4, 1972, and was renewed on the anniversary dates of 1973 and 1974.

 On the agenda of the meeting of the defendant Board of Education on November 26, 1974, was the question of plaintiff's tenure and at that meeting, by a vote of 4 to 1 (defendants Richter and Lively being absent and defendant Liberatore voting in favor of plaintiff), the Board voted to deny tenure to the plaintiff.

 Plaintiff has filed an affidavit in which he states that the defendant Ahrens at that meeting made the following statement which appears in two newspaper articles which he annexes to his affidavit:

 
"We cannot give a reason for the refusal to grant tenure. First of all it would be damaging to the individual as well as the board. We never discuss personnel matters outside of confidential sessions and this is a policy followed in all school districts. Secondly, if we give a reason for our refusal to grant him tenure, then we'll be opening ourselves up to legal action, in the form of an appeal."

 The newspaper articles, of course, are not proof of anything but plaintiff himself swears that ...


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