due process. Kurilla v. Callahan, 68 F. Supp.2d 556 (M.D.Pa.
1999). There, a student got into a fight with another student. A
teacher called both students to his desk and asked them what
happened. One of the students interrupted the other to explain
his side of the story and the teacher told the student to "[s]hut
up or I will lay you out on the floor." Id. at 557. When the
student persisted with telling his side of the story, the teacher
grabbed the student's shirt with clenched fists and pulled the
student hard, causing the student's chest to come into contact
with his fists. The court held that the teacher's actions did not
effect a "seizure" of the student under the Fourth Amendment.
Instead, the court applied the "shocks the conscience" standard
used to determine whether a student's substantive due process
rights were violated. Id. at 563.
However, the Kurilla case is distinguishable from the one at
bar. Here, Amanda claims that she was forcibly detained in a
closet, while Kurilla was a simple case of a teacher's use of
force. In fact, the Kurilla court acknowledged that, with the
exception of the Seventh Circuit's decision in Wallace in which
a teacher grabbed a student by the elbow and wrist, most of the
cases in which courts applied the Fourth Amendment in the school
discipline context "involved factual scenarios more closely
aligned with Fourth Amendment protection." Kurilla, 68
F. Supp.2d at 562.
To the extent that plaintiffs could bring a separate claim
regarding Nicita's alleged use of force against Amanda, i.e.,
grabbing and twisting her wrist and, considering the possibility
that we have erred in our conclusion that the instant case arises
under the Fourth Amendment, we will examine the facts alleged in
the context of substantive due process.
In Ingraham, the Supreme Court held that corporal punishment
in public schools implicates a constitutionally protected liberty
interest where "school authorities, acting under color of state
law, deliberately decide to punish a child for misconduct by
restraining the child and inflicting appreciable physical pain."
430 U.S. at 674, 97 S.Ct. at 1414. De minimis impositions do
not implicate the Fourteenth Amendment. Id.
The Court left open the question whether the infliction of
severe corporal punishment on schoolchildren violates substantive
due process. Ingraham, 430 U.S. at 659, 97 S.Ct. at 1406 n. 12.
Examining the issue of whether corporal punishment violates a
student's right to procedural due process, the Court held that
"traditional common law remedies are fully adequate to afford due
process." 430 U.S. at 672, 97 S.Ct. at 1413.
In the wake of Ingraham, some federal courts have held that
claims of substantive due process violations resulting from the
exercise of corporal punishment are foreclosed where the state
affords the student adequate post-punishment remedies. See,
e.g., Harris v. Tate County Sch. Dist., 882 F. Supp. 90
(N.D.Miss. 1995); Carestio v. Sch. Bd. of Broward County,
79 F. Supp.2d 1347, 1349 (S.D.Fla. 1999). Other courts have found
that a student who has been subjected to corporal punishment may
make out a claim for a violation of her substantive due process
rights regardless of the availability of state law remedies.
See, e.g., Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980);
Meyer by Wyrick v. Litwiller, 749 F. Supp. 981 (W.D.Mo. 1990).
These courts apply the test articulated by the Second Circuit in
Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), overruled on
other grounds by Graham, or a version thereof, to determine
whether a school official's actions "shock the conscience." The
"shocks the conscience" standard has been adhered to as the
benchmark for cognizable abuse of official power since it was
first articulated by the Supreme Court in Rochin v. California,
342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). See
Sacramento v. Lewis, 523 U.S. 833, 846-47, 118 S.Ct. 1708, 1717,
140 L.Ed.2d 1043 (1998).
The Johnson test provides that a court must look to such
the need for the application of force, the
relationship between the need and the amount of force
that was used, the extent of injury inflicted, and
whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.
481 F.2d at 1033. See also Hall, 621 F.2d at 613 ("[T]he
substantive due process inquiry in school corporal punishment
cases must be whether the force applied caused injury so severe,
was so disproportionate to the need presented, and was so
inspired by malice or sadism rather than a careless or unwise
exercise of zeal that it amounted to a brutal and inhumane abuse
of official power literally shocking to the conscience.");
Meyer, 749 F. Supp. at 985 (student plaintiff may recover for
constitutional violations if plaintiff's evidence permits
fact-finder to conclude force applied by teacher was so
disproportionate to need for discipline and so inspired by malice
that teacher's behavior shocked the conscience); Webb, 828 F.2d
at 1158 (school principal who, during a school trip, broke down
the locked door to a hotel bathroom, hitting a student who had
locked herself inside, and who then threw that student against a
wall and slapped her may have violated the student's substantive
Fourteenth Amendment due process rights).
Here, even if we assume that the facts alleged by plaintiffs
are true, Nicita's actions do not "shock the conscience" of the
Court. Amanda did not suffer the kind of "appreciable physical
pain" which implicates the Fourteenth Amendment. See Ingraham,
430 U.S. at 674, 97 S.Ct. at 1414. At most, her physical injuries
amounted to red marks on her arms, stomach upset and headaches.
Although we can appreciate how such an altercation with a teacher
could cause substantial embarrassment to Amanda and Amanda
testified to having seen a psychologist several times following
the incident, these injuries were not "so severe" that
substantive due process rights were implicated. Webb, 828 F.2d
Defendant Nicita's motion for summary judgment as to
plaintiffs' substantive due process claim is granted.
C. Plaintiffs' Deprivation of Property Claim
Plaintiffs claim that Amanda was deprived of procedural due
process when Nicita "robbed her, both figuratively and literally"
of the opportunity to comply with state law provisions as to
found money (Pls. Mem. Opp. Summ. J. at 29), is without merit and
will be dismissed.
"[T]o determine whether due process requirements apply in the
first place, we must look not to the `weight' but to the nature
of the interest at stake." Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d
548 (1972). To have a protectable property interest, a person
must have "a legitimate claim of entitlement" to the property as
defined by state law. 408 U.S. at 576, 92 S.Ct. at 2709.
Generally, the existence of a federally-protected property right
is an issue of law for the court. Natale v. Town of Ridgefield,
170 F.3d 258, 263 (2d Cir. 1999). The claim is not supported
merely by proof that an individual did not receive what they were
entitled to under state law; rather, the "denial must have
occurred under circumstances warranting the labels `arbitrary'
and `outrageous.'" Id. at 262.
Pursuant to New York State law, "[a]t the time property is
found, the finder acquires no right to the property. All he has
is an expectation, which may ripen into a possessory right at the
end of the prescribed time period, provided that the owner has
not come forward and that the finder makes a demand therefor."
Fuentes v. Wendt, 106 Misc.2d 1030, 1033, 436 N.Y.S.2d 801
On November 5, 1998, Amanda had no more than an expectation.
New York law provides that:
any person who finds lost property of the value of
twenty dollars or more or comes into possession of
property of the value of twenty dollars or more with
knowledge that it is lost property or found property
shall, within ten days after the finding or
acquisition of possession thereof, either return it
to the owner or report such finding or acquisition of
possession and deposit such property in a police
station or police headquarters of the city where the
finding occurred or possession was acquired. . . .
N Y Pers. Prop. Law § 252.
Amanda would not have acquired a possessory right to the
twenty-dollar bill until after the statutory three-month period
had expired. See id. §§ 253(7), 254(2). Her rights as they
existed on November 5, 1998 do not support the application of due
process requirements. Accordingly, defendant Nicita's motion for
summary judgment as to plaintiffs' procedural due process claim
III. Plaintiffs' Claims against the District
Section 1983 applies to municipalities and other local
government units. Monell v. Department of Soc. Servs. of the
City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56
L.Ed.2d 611 (1978). However, section 1983 will not support a
cause of action based upon respondeat superior liability. 436
U.S. at 694, 98 S.Ct. at 2037; Polk County v. Dodson,
454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). A
municipality will be liable for a violation of section 1983 only
where the municipality itself was the "moving force" behind the
plaintiff's deprivation of federal rights. Board of the County
Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 400, 117
S.Ct. 1382, 1386, 137 L.Ed.2d 626 (1997). A municipality will not
be held liable solely because it employs a tortfeasor. 520 U.S.
at 403, 117 S.Ct. at 1388. The plaintiff must show that her
injuries were a result of a municipal "policy" or "custom." Id.
"A single incident alleged in a complaint, especially if it
involved only actors below the policymaking level, generally will
not suffice to raise an inference of the existence of a custom or
policy." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.
1993). In cases in which a plaintiff does not claim that a
municipality directly inflicted an injury, but nonetheless caused
an employee to do so, "rigorous standards of culpability and
causation must be applied to ensure that the municipality is not
held liable solely for the actions of its employee." County
Comm'rs of Bryan County, 520 U.S. at 405, 117 S.Ct. at 1389. The
Supreme Court has held that a municipality will be liable for
inadequate training or supervision of its employees "only where
the failure to train amounts to deliberate indifference to the
rights" of those with whom municipal employees will come into
contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109
S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989).
Plaintiffs allege that the District, "aware of Nicita's violent
and aggressive behavior, has deliberately and/or recklessly taken
no remedial and/or no effective remedial action as a result of
which Nicita's said propensities have been encouraged, condoned
and/or ratified by the District." (Complt. ¶ 7.) In their brief
in opposition to defendants' motions, plaintiffs claim that the
District had a custom or policy of failing to take remedial
action "with respect to reports of physically abusive behavior by
Nicita towards students at the District's Middle School," (Pls.
Mem. Opp. Summ. J. at 39), and that the District failed to train
its employees and supervisors regarding appropriate conduct
toward and discipline of students, (id. at 40).
The Second Circuit set forth the following three-part test for
determining when a municipality's failure to train or supervise
rises to the level of "deliberate indifference":
First, the plaintiff must show that a policymaker
knows "to a moral certainty" that her employees will
confront a given situation. . . . Thus, a policymaker
does not exhibit deliberate indifference by failing
to train employees for rare or unforeseen events.
Second, the plaintiff must show that the situation
either presents the employee with a difficult choice
of the sort that training or supervision will make
less difficult or that there is a history of
employees mishandling the situation. . . . [Third],
the plaintiff must show that the wrong choice by the
city employee will frequently cause the deprivation
of a citizen's constitutional rights.
Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992)
(internal citations omitted).
In the instant case, plaintiffs have offered three documented
incidents other than that at bar in which Nicita behaved
inappropriately with a student: one case in which Nicita called a
student "a little faggot" and told him "I should lock you in the
room to have someone beat your ass;" another in which Nicita
twisted a student's arm to take candy from him, causing the
student's arm to turn "slightly red;" and a third in which Nicita
told a student "You turn me on."*fn1 Plaintiffs also offered
evidence that the District did not provide teachers and staff
training specifically targeted to disciplinary procedures and
This evidence is insufficient to impose liability, vicariously
or directly, upon the District for any constitutional
deprivation. There is no evidence the District condoned the
activity of which Nicita is accused, nor is there any evidence
that the District specifically directed, supervised,
participated, authorized, or even knowingly acquiesced in the
incident upon which the claim for relief is based. Plaintiffs
have not demonstrated that the District knew "to a moral
certainty" that the alleged incident was likely to take place.
Defendant Nicita might have demonstrated questionable judgment on
several occasions, but failure to address those events in a more
comprehensive fashion does not lead us to conclude that the
District was deliberately indifferent to the constitutional
rights of Nicita's students. Accordingly, summary judgment is
granted to defendant District as to plaintiffs' federal law
claims against it. Plaintiffs' claims against the District
arising under state law are dismissed without prejudice for lack
of subject matter jurisdiction.
IV. Qualified Immunity
None of the parties disputes that Nicita, as a state actor,
possesses qualified immunity. Qualified immunity shields state
actors from personal liability "insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known," Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982), "or insofar as it was objectively reasonable for them to
believe that their acts did not violate those rights." Brown v.
D'Amico, 35 F.3d 97, 99 (2d Cir. 1994); see also Walker v.
McClellan, 126 F.3d 127, 129 (2d Cir. 1997); Davidson v.
Scully, 114 F.3d 12, 14 (2d Cir. 1997); Gardiner v.
Incorporated Village of Endicott, 50 F.3d 151, 156 (2d Cir.
A court evaluating a claim of qualified immunity "must first
determine whether the plaintiff has alleged the deprivation of an
actual constitutional right at all, and if so, proceed to
determine whether that right was clearly established at the time
the alleged violation." Wilson v. Layne, 526 U.S. 603, 609, 119
S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999) (internal citation and
"Clearly established" for purposes of qualified immunity means
that "[t]he contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful, . . . but it is to
say that in the light of pre-existing law the unlawfulness must
be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107
S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (internal citation
omitted); see also Wilson, 526 U.S. at 614-15, 119 S.Ct. at
It is well settled that children do not "shed their
constitutional rights . . . at the schoolhouse gate." Tinker v.
Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89
S.Ct. 733, 21 L.Ed.2d 731 (1969), although "the nature of those
rights is what is appropriate for children in school." Vernonia
Sch. Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132
L.Ed.2d 564 (1995). As discussed, supra, in Part II.A., the
Supreme Court held in 1985 that public school officials are
subject to the strictures the Fourth Amendment. T.L.O., 469
U.S. at 336-37, 105 S.Ct. 733. The issue at this stage of the
analysis is the more specific, "objective inquiry" of whether a
reasonable public school teacher could have believed that
confining a student in an unlit storage closet during an
encounter after class had ended "was lawful, in light of clearly
established law and the information [the teacher] possessed."
Wilson, 526 U.S. at 615, 119 S.Ct. at 1700.
We hold that material issues of fact preclude a grant of
summary judgment to defendant Nicita on the issue of qualified
immunity. No reasonable school official could have believed that
the conduct Amanda described was lawful. The dearth of Supreme
Court and Second Circuit decisions squarely on point with the
facts of this case is likely a function of the aberrational
quality of the alleged acts, and cannot serve to shield a teacher
from the consequences of confining a student in a closet. See
Wilson, 526 U.S. at 621, 119 S.Ct. at 1702 (Stevens, J.,
concurring in part and dissenting in part) ("The absence of
judicial opinions expressly holding that police violate the
Fourth Amendment if they bring media representatives into private
homes provides scant support for the conclusion that in 1992 a
competent officer could reasonably believe that it would be
lawful to do so."). Accordingly, we deny defendant Nicita summary
judgment on the issue of qualified immunity.