right to pay
and benefits as a result of her March 1998 assault. Bliss Complaint,
¶ 108. Bliss, however, concedes that RCSD has issued a lump sum
payment for the pay and benefits she seeks. As a result, this claim is now
moot. I reject Bliss's assertion that RCSD's discretionary payment to her
is tantamount to an admission of liability on this claim, and the fact
that she has some residual questions about how the lump sum payment was
calculated is not sufficient. to defeat defendants' summary judgment
motion. For these reasons, Bliss's second cause of action is dismissed.
I. Claims Premised Upon 42 U.S.C. § 1983
Plaintiffs also assert § 1983 claims. See 5th cause of action in
Bliss and Eaton; 4th cause of action in Coons. To maintain a § 1983
claim, a plaintiff "must allege conduct under color of state law that
deprived [her] of rights secured by the Constitution or laws of the
United States." Katz v. Klehammer, 902 F.2d 204, 206 (2d Cir. 1990)
(citation omitted). RTA, however, is a private, non-governmental entity,
and is therefore not liable to suit under § 1983 unless its actions
were "fairly attributable to the State." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982); see also Clapp v. LeBoeuf, Lamb, Leiby &
MacRae, 862 F. Supp. 1050, 1059 (S.D.N.Y. 1994).
To state a claim under § 1983, plaintiffs are therefore required to
allege facts which demonstrate that RTA was "a willful participant in
joint activity with the State or its agents." See Adickes v. S. H. Kress
& Co., 398 U.S. 144, 152 (1970), quoting United States v. Price,
383 U.S. 787, 794 (1966). Even viewing the allegations of the complaint
in a light most favorable to plaintiffs, they fail to allege sufficient
facts that give rise to the inference that RTA acted in concert with or
"obtained significant aid" from any state actor, like RCSD. See Lugar,
457 U.S. at 937. In light of the above, therefore, plaintiffs have no
viable civil rights action against the RTA.
Moreover, "complaints alleging § 1983 violations `must contain
specific allegations of fact . . . .; allegations which are nothing more
than broad, simple, and conclusory statements are insufficient to state a
claim under § 1983.'" Humpherys v. Nager, 962 F. Supp. 347 (E.D.N Y
1997) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.
1987)) (citations omitted); see Corredor v. United Federation of
Teachers, 162 F.3d 1147, 1998 WL 639403 (unpublished opinion) (2d Cir.
1998) (affirming dismissal of claims against union brought under §
1983, because they did not allege sufficient acts under which union was
acting under color of state law). Because plaintiffs have offered nothing
other than conclusory allegations, their claims premised upon § 1983
must be dismissed.
Even generously assuming that any plaintiff had established a tangible
property interest of which she may have been deprived, there is no issue
of material fact that RCSD afforded each of them all necessary process.
Nevertheless, plaintiffs never exhausted their administrative remedies.
Indeed, Bliss, for example, never even availed herself of the grievance
procedure until after she commenced her action, and the evidence
established that neither Coons nor Eaton ever filed any grievance
regarding these matters.
Any possible claims plaintiffs were denied equal protection must be
dismissed as well. Neither Bliss nor Eaton identify any similarly
situated teachers who were treated any differently in response to
reported threats or assaultive conduct by students, and they have
produced no evidence of any
discriminatory or retaliatory motive against
them. See Brennan v. City of White Plains, 67 F. Supp.2d 362, 371
(S.D.N.Y. 1999) ("[l]ike Title VII claims, Section 1983 claims premised
upon equal protection violations ultimately demand proof of purposeful
With respect to the Board of Education and its individual numbers,
"[i]t is beyond dispute that there is no cause of action for damages
under 42 U.S.C. § 1983 for damages against a school board or its
members in their official capacities." Montefusco v. Nassau County, 39
F. Supp.2d at 238.
For all of these reasons, plaintiffs' § 1983 claims against all
defendants must be dismissed.
J. Claims Premised Upon The Civil Rights Act of 1871,
42 U.S.C. § 1985(3)
Coons' fifth cause of action and Bliss and Eaton's sixth causes of
action are each premised upon § 1985(3).*fn19 To state such a
claim, a plaintiff must allege: (1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class of persons
of the equal protection of the laws, or of equal privileges and
immunities under the law; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United
States. United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825,
828-29 (1983); Mian v. Donaldson, Lufkin & Jenrette Securities Corp.,
7 F.3d 1085, 1087-1088 (2d Cir. 1993).
As this Court held in Seils:
In order to satisfy the second element of a §
1985(3) claim, "the conspiracy not only must have as
its purpose the deprivation of `equal protection of
the laws, or of equal privileges and immunities under
the laws,' but also be motivated by some racial, or
perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators'
action." United Brotherhood of Carpenters & Joiners,
463 U.S. at 829 (quoting Griffin v. Breckenridge,
403 U.S. 88, 102 (1971)); see also Graham v.
Henderson, 89 F.3d 75, 81 (2d Cir. 1996). This animus
requirement prevents § 1985(3) from being
interpreted as providing a federal remedy for all
tortious conspiracies that interfere with the rights
others. See Gagliardi v. Village of Pawling,
18 F.3d 188, 194 (2d Cir. 1994). Moreover, a
constitutional conspiracy claim "must be pled with
some degree of particularity." Temple of the Lost
Sheep, Inc. v. Abrams, 88-CV-3675, 1990 WL 156139
(E.D.N Y September 26, 1990), aff'd, 930 F.2d 178 (2d
Cir.), cert. denied, 502 U.S. 866 (1991). In
addition, § 1985(3) "creates no substantive
rights, but merely `provides a remedy for violation of
the rights it designates.'" Sherlock v. Montefiore
Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996) (quoting
Great American Federal Savings & Loan Ass'n v.
Novotny, 442 U.S. 366, 372 (1979)).
Seils v. RCSD, Decision and Order, entered January 23, 2002, p. 31 (Dkt.
While in the past some support existed for the proposition that reverse
racial discrimination is not actionable under § 1985(3) (see Davis
v. Halpern, 768 F. Supp. 968, 983 (E.D.N.Y. 1991) (describing as
problematic a claim under § 1985(3) for reverse racial
discrimination); Marsh v. Bd. of Educ. of the City of Flint,
581 F. Supp. 614, 617-18 (E.D.Mich. 1984), aff'd without opinion,
762 F.2d 1009 (6th Cir. 1985), vacated on other grounds, 476 U.S. 1137
(1986) (holding that § 1985(3) does not apply to a claim of reverse
racial discrimination)), in Triad Assocs., Inc. v. Chicago Housing
Auth., 892 F.2d 583 (7th Cir.), cert. denied, 498 U.S. 845 (1990), the
Seventh Circuit concluded that reverse racial discrimination against
whites was actionable under § 1985(3). Id. at 593. In Murphy v. Board
of Education, 93-CV-6158, this Court agreed with the reasoning of the
Seventh Circuit, and ruled:
To say that § 1985(3) applies only to
discrimination against blacks would give that
legislation too narrow a focus. It would mean that
§ 1985(3) would be unavailable not only to whites
but also other racial minorities. "[T]he fact that
discrimination against whites [and other racial
minorities] was not the primary concern of the 42d
Congress in 1871 should not deprive whites from
receiving the protections of § 1985(3) expressly
granted to any person or class of persons." Id.
While § 1985(3) may apply to Caucasians, it does not apply in these
cases because plaintiffs have failed to marshal the requisite evidence in
support of their conspiracy theories — theories which appear to
have few boundaries. In fact, plaintiffs have offered no evidence
suggesting that the RCSD and RTA defendants conspired together in
violation of § 1985(3). As I previously stated in my decisions in
Seils, I am troubled by the sweeping nature of such serious allegations
in light of the fact that plaintiff has submitted no evidence to support
them, especially in light of the strictures of Rule 11. FED. R. CIV. P.
11. Rather than proffer evidence, plaintiffs merely rest on their
allegations. At this juncture, plaintiffs must do more than merely rely
on their pleadings, and since they have not, their § 1985(3) claims
must be dismissed as well.