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September 11, 2000


The opinion of the court was delivered by: William C. Conner, District Judge.


Plaintiffs Victoria and Anthony Bisignano bring the instant action on behalf of their minor daughter Amanda Bisignano against defendants Harrison Central School District (the "District") and teacher Vincent Nicita. Plaintiffs claim that defendants falsely imprisoned Amanda, subjected her to excessive force, and deprived her of her property in violation of the Fourth and Fourteenth Amendments, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and New York State law. Plaintiffs also assert claims against defendants for negligence and intentional infliction of emotional distress. The District, claiming that Nicita's acts may not be imputed to it, now moves for summary judgment pursuant to Fed.R.Civ.P. 56(b). The District seeks dismissal of plaintiffs' complaint and Nicita's cross-claim against it, or, in the alternative, an order removing this case to state court. Nicita also moves for summary judgment and dismissal of plaintiffs' complaint, or, in the alternative, for removal to state court. For the reasons that follow, the District's motion for summary judgment is granted as to plaintiffs' federal law claims against it and plaintiffs' state law claims against the District are dismissed for lack of subject matter jurisdiction. Defendant Nicita's motion for summary judgment is granted as to plaintiffs' procedural and substantive due process claims, but in all other respects is denied. Defendant Nicita's cross-claim against the District is dismissed without prejudice.


At the time of the events underlying the instant lawsuit, Amanda Bisignano was thirteen years-old and an eighth-grade student at Louis M. Klein Middle School in Harrison, New York. Amanda took a gym class taught by defendant Nicita every other day. Nicita began working as a coach in the District in 1983, and as a physical education teacher in 1991.

Amanda said that after Nicita dismissed the class, she ran out of the gymnasium laughing and Nicita ran after her. (Bisignano Dep. at 47.) Amanda testified that Nicita told her she could not leave until she returned the twenty-dollar bill to him and then he gave her "a little push" into an equipment closet. (Id. at 48.) Nicita testified during his deposition that he did not push Amanda into the closet, but that she ran into the closet herself. (Nicita Dep. at 53.)

Amanda testified that the doors to the closet were completely closed and there was no light inside the closet. (Bisignano Dep. at 52-53.) Nicita said he believed the lights were on. (Nicita Dep. at 59.) Amanda said she remained in the closet for slightly more than thirty seconds while Nicita held the doors shut from the other side. (Bisignano Dep. at 52-53.) Amanda said she demanded to be released from the closet, but Nicita told her he would not release her until she gave him the money. According to Amanda, Nicita, who was laughing, then opened the door about a foot, and Amanda slipped out.

Nicita remembered the incident differently. He testified that he pushed the door closed, then walked away from it. (Nicita Dep. at 60.) He said Amanda then exited the closet. (Id. at 62.)

Amanda testified that after she exited the closet, Nicita grabbed and twisted her left wrist, and yelled at her to give him back his twenty dollars. She said she screamed for help. Then, when she reached into her pocket to retrieve the bill, Nicita grabbed her upper right arm. (Bisignano Dep. at 54-59.) Amanda said she threw the bill, which glanced off Nicita's chest and fell to the ground. Nicita told her to pick up the bill and hand it to him "like a human being." (Id. at 60.) Nicita testified that when Amanda left the closet, she was holding the bill in her hand. (Nicita Dep. at 79.) He said he "just held her hand as it was there," (id. at 75), and that he held her hand "[t]ight enough so that she couldn't get away, but not that tight," (id. at 81). Nicita said Amanda threw the bill on the floor, and he told her to pick it up and hand it to him. (Id. at 80.)

Amanda said she ran out of the room and went into the girls' locker room where she showed her friends the red marks on her arms. She was crying. (Bisignano Dep. at 64.) She then went to the nurse's office, where the nurse put ice packs on her arms. Ann Doniger, a health assistant, testified that Amanda's arm was "slightly red" near her wrist. (Doniger Dep. at 15.)

Nicita came to the nurse's office and asked Amanda to take a walk with him. Amanda said they went to Nicita's office and Nicita apologized and told her that he did not mean to hurt her. (Bisignano Dep. at 63.) Rosemary Brooke, the principal of the middle school, said that when Amanda came to her office following the incident, Amanda had marks on her upper arm and wrist. (Brooke Dep. at 151.) Brooke described Amanda's injuries as "slight." (Id. at 154.) Brooke telephoned Amanda's parents and Amanda chose to spend the rest of the day in school rather than go home. Brooke testified that she reported the incident to the District superintendent. Subsequently, the principal and superintendent met with plaintiffs and Nicita.

Amanda states she had "many" sessions with a psychologist following the incident. (Bisignano Dep. at 29.) Amanda complained of frequent stomach aches and headaches, although Amanda testified she had suffered from migraine headaches prior to the incident. (Id. at 31-34.)

In her deposition, Amanda testified that during the spring 1998 softball season, Nicita, who was her coach, told her that "we should do the batting order by my I.Q. and instead of playing I should bring a pillow so I can sit on it." (Id. at 11.)

Brooke testified that other students had incidents with Nicita. Brooke said that a memorandum in her correspondence file reported that Nicita, "in correcting an incident in the locker room[,] . . . said to [a student] you were a little faggot, I should lock you in the room to have someone beat your ass." (Brooke Dep. at 8.) Brooke said she did not speak with Nicita about the incident and did not report the incident to the District superintendent. (Id. at 11.) Brooke also testified that a May 1997 document made "reference to a youngster who reported to the nurse that he had a sore arm," and that "Mr. Nicita twisted his arm to take candy from him, area slightly red, ice applied." (Id. at 15.) In a 1992 memorandum from Brooke to Nicita, Brooke reprimanded Nicita for telling a student, "You turn me on." (Berg Aff., Ex. 33.)

Brooke testified that during her tenure as principal, the District provided teachers with a handbook and at times invited speakers to discuss "being sensitive to the kids" with faculty, but did not offer training focused on disciplining students or interpersonal skills. (Brooke Dep. at 12-13, 114.)


I. Summary Judgment Standard

A district court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). The party seeking summary judgment has the burden of showing that no genuine factual dispute exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

II. Plaintiffs' Claims Against Nicita

Plaintiffs claim that defendant Nicita falsely imprisoned Amanda, subjected her to excessive force and deprived her of her property in violation of her Fourth and Fourteenth Amendment rights, as made actionable by the Civil Rights Act of 1871, 42 U.S.C. § 1983. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

Not every state law tort becomes an actionable constitutional tort under section 1983 simply because it was committed by a state actor. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979). Thus, our initial inquiry is whether the alleged actions, if taken as true, deprived Amanda Bisignano of a constitutional right. See Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) ("The ...

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