Under these circumstances, the actions taken by the Board, the
District, and Mostow were more than reasonable. In fact, the
Court agrees with defendants that, presented with information
that a school teacher engaged in sexual self-stimulation with the
aid of photographs of school-aged children — whether ultimately
true or not — the defendants would have been remiss in their
duties had they taken no action at all.
As a matter of law, the actions taken by the defendants here
were not arbitrary, conscience-shocking, or oppressive in a
constitutional sense. See Catanzaro, 140 F.3d at 95. Charges
were brought, after an investigation, and Montefusco ultimately
was cleared of any wrongdoing. Nor were the actions of these
defendants incorrect or ill-advised. The information these
defendants had obtained led them to take appropriate and
reasonable actions under the circumstances as they knew them to
be. Therefore, the Court finds that there is no genuine issue of
material fact involving this claim, and that the moving parties
are entitled to judgment as a matter of law. Defendants' motions
for summary judgment on the due process claims are therefore
GRANTED, and Count II of the Amended Complaint, insofar as it
alleges a violation of due process, is DISMISSED.
D. Counts I and II: Violation of First Amendment Rights
"The First Amendment literally forbids the abridgment only of
`speech,' but we have long recognized that its protection does
not end at the spoken or written word." Texas v. Johnson,
491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). At issue
in this case is whether the photos taken by Montefusco are, as he
argues, "speech" entitled to protection by the First Amendment.
There is no doubt that the protection granted by the First
Amendment extends beyond political speech and verbal expression.
See Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct.
777, 96 L.Ed. 1098 (1952) (film); see also Bery v. City of New
York, 97 F.3d 689, 694 (2d Cir. 1996), cert. denied,
520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997), (pointing out that
the First Amendment protects, inter alia, theater, music, film,
entertainment, parades, and peaceful marches). Indeed, "[i]f the
First Amendment reached only expressions conveying a
particularized message, its protection would never reach the . .
. painting of Jackson Pollock, music of Arnold Schönberg, or
Jabberwocky verse of Lewis Carroll." Id. (quoting Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)) (internal
quotation marks omitted). Thus, the Second Circuit concluded in
Bery that "[v]isual art is as wide ranging in its depiction of
ideas, concepts and emotions as any book, treatise, pamphlet or
other writing, and is similarly entitled to full First Amendment
protection." Id. at 695 (footnote omitted).
However, the Bery court also recognized that images
nevertheless must communicate some idea in order to be protected
under the First Amendment. Bery, 97 F.3d at 695; see also
Johnson, 491 U.S. at 404, 109 S.Ct. 2533 (holding that conduct
must be "sufficiently imbued with elements of communication to
fall within the scope of the First and Fourteenth Amendments.")
(quoting Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct.
2727, 41 L.Ed.2d 842 (1974)).*fn6 Significantly, the
Second Circuit pointed out that visual images are "a short cut
from mind to mind." Id. (quoting West Virginia State Bd. of
Educ. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed.
Thus, under this standard, albeit broadly interpreted, there
must still be (1) a message to be communicated and (2) an
audience to receive that message, regardless of the medium in
which the message is sought to be expressed. See Hurley, 515
U.S. at 568, 115 S.Ct. 2338 (pointing out importance of the
sender/receiver model of communication by noting that, in the
context of a parade, if nobody watches it, it may as well not
have happened). Otherwise, if either is lacking, there is
absolutely nothing to transmit "from mind to mind." Without an
element of expression, there is no risk to the "speaker" or
creator of art that his or her ideas or messages will be
unlawfully extinguished by governmental action in contravention
of the First Amendment. Therefore, although a "difficult" task,
"[c]ourts must determine what constitutes expression within the
ambit of the First Amendment and what does not." Bery, 97 F.3d
at 696 (holding that visual art, and the street marketing of that
art, were entitled to full First Amendment protection).
However, under the facts presented here, the Court determines
that it is not necessary to reach this difficult question of
whether or not the photographs are protected by the First
Amendment. That is because, regardless of whether the photographs
are protected, there is no evidence of a deprivation of any
right. Even if the photographs were entitled to full First
Amendment protection, the defendants here did not violate that
There is no evidence in this record that the defendants
attempted to prohibit Montefusco from taking the photos,
developing the photos, selling the photos, possessing the photos,
or displaying the photos. There also is no evidence to indicate
that the defendants here sought to stifle any message, no matter
how undefined, that Montefusco wished to communicate through the
photographs. Nor is there any evidence that defendants sought to
punish Montefusco or retaliate against him for his picture-taking
activity, nor prohibit him from engaging in any of these
activities in the future.
Rather, the defendants simply determined that, based on the
nature of the photos — protected by the First Amendment or not —
Montefusco should be brought up on charges of conduct unbecoming
a teacher.*fn8 Given the information
the defendants possessed, which consisted of the testimony of
Detective Macauley regarding Montefusco's statements to him and
their own viewing of a number of the photographs, there is
nothing in this record to support the claim that defendants
abridged Montefusco's First Amendment rights.
Thus, the defendants' motions for summary judgment on the
claims that they violated Montefusco's First Amendment rights, as
alleged in Counts I and II of the Amended Complaint, are GRANTED,
and these counts are DISMISSED.
E. Count VI: Malicious Prosecution
The only claim remaining is the allegation of malicious
prosecution against the defendants. However, because all federal
claims have been dismissed, the Court declines to exercise
jurisdiction over this remaining state law claim. A district
court may decline to exercise supplemental jurisdiction if it has
"dismissed all claims over which it has original jurisdiction."
28 U.S.C. § 1367(c)(3); see also Nerney v. Valente & Sons Repair
Shop, 66 F.3d 25, 30 (2d Cir. 1995). In declining to exercise
jurisdiction over the malicious prosecution claim, the Court has
considered its decision in light of judicial economy,
convenience, and fairness to the parties. See United Mine
Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16
L.Ed.2d 218 (1966). Moreover, in light of the questions regarding
the validity of this claim in the unique educational context
presented here, in the interests of comity the Court determines
that this claim would be better resolved in a state forum. See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct.
614, 98 L.Ed.2d 720 (1988); Powell v. Gardner, 891 F.2d 1039,
1047 (2d Cir. 1989) (affirming district court's dismissal of
state law claims after dismissal of all federal claims). Thus,
the claim of malicious prosecution brought in Count VI is
DISMISSED without prejudice.
F. Yolanda Montefusco's Claim for Loss of Consortium
Yolanda Montefusco's claim for loss of consortium, as alleged
in Count VII of the Amended Complaint, must also be dismissed.
The loss of consortium claim is derivative of the injured
spouse's claim and may not exist on its own. Gerzog v. London
Fog Corp., 907 F. Supp. 590, 605 (E.D.N.Y. 1995) ("where the
injured spouse's underlying claims are dismissed, the claim for
loss of consortium must similarly be dismissed"); Liff v.
Schildkrout, 49 N.Y.2d 622, 633, 427 N.Y.S.2d 746, 749,
404 N.E.2d 1288 (1980) (loss of consortium is a derivative action
does not exist independently of injured spouse's claims).
Accordingly, in light of the dismissal of Counts I-VI of the
Amended Complaint, Yolanda Montefusco's claim for loss of
consortium in Count VII is DISMISSED without prejudice.
For the reasons discussed above, the motion of Defendant Board
of Education of Lindenhurst Free Union School District is GRANTED
in it entirety. Defendant Michael Mostow's motion for summary
judgment is GRANTED with respect to all claims except that of
malicious prosecution. The motion of Defendant Lindenhurst Union
Free School District is GRANTED with respect to all claims except
that of malicious prosecution.
In light of the dismissal of all federal claims, the Court
declines to exercise supplemental jurisdiction over the remaining
state law claim. 28 U.S.C. § 1367(c). Thus, the malicious
prosecution claim is DISMISSED without prejudice. The loss of
consortium claim is also DISMISSED without prejudice. Moreover,
have withdrawn Count V, alleging defamation, against all
defendants. Thus, Count V is DISMISSED with prejudice.*fn9