parents if she saw an instance of abuse, Gesso testified that
Principal Gregory said: "No. You don't notify any parents. That
is where it goes from, him. He would be the one that would
notify. In other words, I don't have the authority to go to the
parents or someone else, even if I wanted to." (Gaugran Aff.
(Gesso Dep. at 8-9) at Ex. H.). However, Kathy Lopez, another of
plaintiffs' own witnesses, has testified that despite the
principal's preference of being the one to communicate with
parents, teacher's aides were never actually prohibited from
speaking with parents. (Lopez Dep. at 8.)
There is a disputed issue of fact on this point. Summary
judgment is denied.
3. Qualified Immunity
Defendant Gregory has also moved for summary judgment on the
ground of qualified immunity. That motion also is denied. It is
well-established that qualified immunity acts to shield
government officials from liability under section 1983 "insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). The extent of protection afforded
defendants depends upon the "objective legal reasonableness" of
defendants' actions "assessed in light of the legal rules that
were `clearly established' at the time [they were] taken." See
Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97
L.Ed.2d 523 (1987) (quoting Harlow, 457 U.S. at 818-19, 102
S.Ct. 2727). Defendant is entitled to summary judgment on
qualified immunity grounds only if, drawing all inferences in
favor of plaintiffs, no rational jury could conclude that it was
objectively unreasonable for him to believe that his actions did
not violate a clearly established right. See Culp v.
Koenigsmann, No. 99 Civ. 9557, 2000 WL 995495, at *7 (S.D.N Y
Jul.19, 2000) (citing Williams v. Greifinger, 97 F.3d 699, 706
(2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123
(2d Cir. 1996)).
While supervisory officials cannot be held liable under Section
1983 for the acts of their subordinates, see Monell v.
Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978), they may be found sufficiently involved to
impose liability by evidence of their: (1) direct participation
in the alleged constitutional violation; (2) failure to remedy a
wrong after learning of it; (3) creation or maintenance of a
policy under which unconstitutional violations occurred; (4)
gross negligence in managing subordinates who committed the
unconstitutional acts; or (5) exhibiting deliberate indifference
to the rights of others by failing to act on information
indicating that unconstitutional acts were occurring. Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Defendant Gregory was given a report in October 1998 from two
classroom aides that one of the teachers in his school was being
too physical with a class of autistic children. In response,
Gregory took no action besides asking Barnett whether she had
abused the children.
The right of children to be free from excessive force in the
classroom is a clearly established right. Johnson v. Newburgh
Enlarged Sch. Dist., 239 F.3d 246 (2d Cir. 2001). If these
factual allegations are borne out, a jury could find Gregory
personally involved in the unconstitutional deprivation on the
basis that he was either grossly negligent in supervising
Barnett, or that he exhibited deliberate indifference to the
students' rights by failing to act on information that
unconstitutional acts were occurring. As a result, I cannot say
at this stage of the case that, as a matter of law, the
plaintiffs are incapable
of establishing Gregory's liability for the abuse of plaintiffs.
See also Johnson, 239 F.3d at 249 (affirming denial of summary
judgment on qualified immunity because school officials were on
notice that the teacher might be dangerous because of prior
altercations with students).
This constitutes the decision and order of the Court.
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