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January 12, 2004.

ESTATE OF BRIAN PATRICK MORRIS, by JANINE MORRIS, Administratrix, Plaintiff, -against- BART DAPOLITO, individually, PAUL M. SIRAGUSA, individually, MICHAEL V. YAZURLO, individually, DOUGLAS REICH, individually, ANTHONY BUONOCORE, individually, SHEREE RAHO, individually, PATRICK GALLO, individually, FRANK COLEMAN, individually, RICHARD MAURER, individually, SAL ROSSI, individually, THOMAS GANNALO, individually, ROBERT MANNIS, individually, MARIO ASTORITA, individually, DAVID SPEIDELL, individually, the TUCKAHOE UNION FREE SCHOOL DISTRICT and the TOWN OF EASTCHESTER, N.Y., Defendants

The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Janine Morris, Administratrix of the Estate of Brian Patrick Morris ("Brian"), brings this action pursuant to 42 U.S.C. § 1983 against: (1) Bart Dapolito, Paul M. Siragusa, Michael V. Yazurlo, Douglas Reich, Anthony Buonocore, Sheree Raho, Patrick Gallo, Frank Coleman and the Tuckahoe Union Free School District (the "District") (collectively, "school defendants"); and (2) Mario Astorita, David Speidell and the Town of Eastchester (the "Town") (collectively, "police defendants").*fn1

Dapolito is a tenured physical education teacher at the Tuckahoe High School (the "School"), where Brian was a seventeen year-old high school senior. (Am. Complt. ¶¶ 3-4.) Siragusa was the principal of the School and Yazurlo was the superintendent of the District at the time of the incident giving rise to this action. (Id. ¶¶ 4-5.) Defendants Reich, Buonocore, Raho, Gallo and Coleman were the elected members of the District's board of education during 2003. Astorita is a detective lieutenant in the Town's police department and Speidell is the chief of that department. (Id. ¶¶ 10-11.) Specifically, plaintiff claims that: (1) Dapolito and the District violated Brian's Fourteenth Amendment rights to substantive due process when Dapolito assaulted him at the School; (2) Yazurlo, Siragusa, the District, Reich, Buonocore, Raho, Gallo and Coleman violated Brian's Fourteenth Amendment rights by engaging in a retaliatory selective prosecution of him; and (3) Yazurlo, Siragusa, the District, Reich, Buonocore, Raho, Gallo, Coleman and Astorita conspired and retaliated against Brian in violation of his First Amendment rights.*fn2 (Id. ¶¶ 57-62.) Defendants now Page 2 move to dismiss the second and third counts of the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim for which relief can be granted. For the reasons set forth herein, school defendants' motion to dismiss the second count of the Amended Complaint is granted. Defendants' motion to dismiss the third count of the Amended Complaint is denied. Plaintiff is granted leave to file a Second Amended Complaint within thirty days of the issuance of this Opinion and Order.


  The following statement of facts is based on the allegations in plaintiff's Amended Complaint, which, for the purposes of this motion, we assume to be true.*fn3 Brian was a seventeen year-old student enrolled in the District's high school. (Am. Complt. ¶ 3.) He was extremely popular and a star athlete who had won a sports scholarship to Concordia College where he was scheduled to commence his freshman year in the Fall of 2003. (Id.) On April 24, 2003, Brian was assigned to study hall in the high school cafeteria, during which time he engaged in an arm-wrestling match with a classmate. (Id. ¶ 22.) During that arm-wrestling match, Dapolito, a tenured*fn4 gym Page 3 teacher, approached Brian from behind and placed him in a choke-hold by clamping Brian's throat with his forearm. (Id. ¶ 23.) Dapolito lifted Brian off of the chair and threw him into a metal cafeteria table that broke in half on impact. (Id.) This caused Brian to suffer throat and back injuries. (Id.) Dapolito then ordered Brian and his classmate to go to Siragusa's office. (Id. ¶ 24.) At the office, Siragusa was given each party's version of the assault, but elected to do nothing about it. (Id.) Siragusa then directed Dapolito to return to the cafeteria; (Id.)

  Shortly thereafter, Siragusa directed Brian and his classmate to return to the cafeteria as well. (Id.) When Brian entered the cafeteria, he approached Dapolito to apologize for the earlier incident. (Id. ¶ 25.) In response, Dapolito told Brian: "Don't come any closer or I'll drop you." (Id.) Brian responded by pushing a chair at Dapolito, at which point Dapolito yelled "No one fuckin' embarrasses me in front of my children" and ordered Brian to return to Siragusa's office. (Id. ¶ 26.)

  Back in Siragusa's office, Dapolito ordered Siragusa's staff to call the police; they refused pursuant to a policy that permits only the superintendent of schools to summon law enforcement officials to school grounds. (Id. ¶ 27.) Dapolito grew even more enraged, grabbed the phone and called the police. (Id. ¶ 28.) Dapolito then overheard Brian telling Siragusa truthfully about the two assaults in the cafeteria. (Id.) Siragusa then had an oral exchange with Brian, after which Dapolito charged into Siragusa's office and knocked Siragusa to the floor. (Id. ¶ 29.) Dapolito then attacked Brian and pushed him backwards over Siragusa's desk while choking him, strangling him with his Page 4 neck chain, banging his head into a desktop, punching him in the face and stomach, and throwing him to the floor. (Id. ¶ 30.)

  Siragusa ordered Dapolito to stop the attack, but Dapolito ignored him. (Id.) Concerned that Dapolito might kill Brian, Siragusa then physically intervened. (Id. ¶ 31.) Siragusa was again thrown to the floor and was not able to pull Dapolito off Brian until another student interceded. (Id.) Brian suffered numerous injuries during this altercation, including cuts, bruises and contusions. (Id.) When the police arrived, Dapolito feigned a heart attack on the advice of his union representative and was transported to the hospital. (Id.)

  After Brian received medical treatment for his injuries, his mother brought him to the Town's police headquarters where they reported Dapolito's conduct to Astorita. (Id. ¶ 33.) Astorita, who claimed to be outraged "as a father" at Dapolito's conduct, advocated his arrest. (Id.) Two days thereafter, Brian signed a criminal complaint against Dapolito charging him with assault in the third degree, a class A misdemeanor. (Id.)

  The District, however, took no disciplinary or remedial action against Dapolito, although it did transfer him to the District's grammar school. (Id. ¶¶ 34, 47.) Rather, plaintiff claims that Yazurlo and Siragusa, motivated by the criminal accusations and with the "knowledge and condonation" of school board members Reich, Buonocore, Raho, Gallo and Coleman, entered into an agreement or plan to cover-up Dapolito's actions. (Id. ¶ 35.) Part of this plan required disciplinary action to be taken against Brian, but not against Dapolito. (Id.) Thus, Siragusa, with the agreement of Yazurlo and the informal concurrence of the board of education, suspended Brian from school effective immediately for five days for "insubordination and endangering the health and safety of others." (Id. ¶ 36.) Thereafter, on April 28, 2003, Yazurlo advised Brian's parents via Page 5 letter that a superintendent's hearing would be held on this charge pursuant to N.Y. EDUC. LAW § 3214. (Id.¶ 37.)

  Prior to the superintendent's hearing, Yazurlo and Siragusa, acting in concert with Dapolito, published or encouraged the publication of false allegations about Brian. (Id. ¶ 38.) These allegations included statements to the effect that, prior to the incident with Dapolito, Brian had threatened to rape Dapolito's daughter and wife. (Id.) Moreover, Yazurlo and Siragusa published or encouraged the publication of allegations stating that Brian had threatened to murder Brian's girlfriend and her younger sibling approximately two weeks prior to the April 24 incident with Dapolito. (Id. ¶ 39.) The girlfriend, however, previously had admitted to Siragusa that she and two of her friends deliberately fabricated the death threat allegations. (Id.) Neither Yazurlo nor Siragusa disclosed publicly that any of these allegations were false, even though they knew that the media's republication of them would cause Brian emotional pain and suffering. (Id. ¶ 38-39.)

  Thereafter, the superintendent's hearing was conducted by Siragusa and Yazurlo on April 30, 2003 without Brian present. (Id. ¶ 40.) No evidence was received during the hearing. (Id.) At the conclusion of the hearing, Yazurlo told plaintiff that Brian would have to be home-schooled for the remainder of the school year because of the aforementioned recanted threats and the April 24 incident with Dapolito. (Id.) A letter informing Brian and his parents of this decision followed on May 8, 2003. (Id. ¶ 48.)

  In the period between April 24, 2003 and May 1, 2003, Astorita and Speidell communicated with Yazurlo and Siragusa and agreed to participate in the District's cover-up by engaging in deliberate inaction. (Id. ¶ 41.) To that end, Astorita and Speidell agreed to use their authority as police officers to prohibit the arrest of Dapolito on Brian's criminal complaint and to dissuade Brian Page 6 and his parents from pursuing that arrest. (Id. ¶ 42.) Indeed, they met with Brian and his parents and warned them not to pursue the assault charge because the news media would publicize the event, causing Concordia College to rescind its offer of an athletic scholarship and ruin Brian's prospects for a professional baseball career. (Id. ¶ 43.) Speidell advised plaintiff that he agreed "100%" with Astorita's warning and advice. (Id.) Brian insisted, however, that the police arrest Dapolito because Dapolito posed an imminent threat to the health and safety of other students. (Id. ¶ 44.) Astorita, with the approval and concurrence of Speidell, advised Brian that he alone had the authority to determine who would be prosecuted in the case, and that if Brian did not agree to a reduced violation-level charge against Dapolito, Astorita would accept a cross-complaint of harassment from Dapolito against Brian. (Id. ¶ 45.) To this end, Astorita wrote out the charge about which he had threatened Brian and gave the paper to plaintiff. (Id.) Brian and his parents did not yield to this attempted coercion, but Astorita and Speidell still declined to arrest Dapolito. (Id. ¶ 46.)

  On May 8, 2003, Yazurlo sent a letter to Brian and his parents sustaining the charges heard at the April 30 superintendent's hearing. (Id. ¶ 48.) Yazurlo suspended Brian for the remainder of the school year, subject to home schooling. (Id.) As a result of the conduct of the board of education, Astorita, Speidell, Yazurlo and Siragusa, Brian was so panicked and distraught that he committed suicide on that same day by jumping in front of a passenger train at the Tuckahoe train station. (Id. ¶ 49.)

  After Brian's death, on May 16, 2003, Yazurlo expressed his feigned sorrow and advised Brian's parents that "an allegation of child abuse in the educational setting on April 24, 2003" had been made and required investigation. (Id. ¶ 50.) Speidell and Astorita then falsely advised plaintiff that the arrest or prosecution of Dapolito was legally impossible because Brian's testimony was no Page 7 longer available. (Id. ¶ 52.)

  After the filing of this action, and the resulting media publicity, Yazurlo, Dapolito, Siragusa, Speidell and Astorita met at Yazurlo's office on September 4, 2003. (Id. ¶ 53.) At this meeting, these defendants agreed to engage in conduct creating the appearance that the District was taking appropriate remedial action with respect to Dapolito. (Id. ¶ 54.) They agreed that Dapolito would remove his personal belongings from the grammar and high schools to give the impression that he was under disciplinary suspension. (Id.) It was further agreed that Speidell and Astorita would not permit the ...

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