The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
Before this Court is the Board of Education of Syosset Central
School District ("Board of Education"), James Kassebaum
("Kassebaum"), and Carole G. Hankin's ("Hankin"), (collectively
"Defendants"), motions to dismiss Plaintiff D.F.'s ("Plaintiff"
or "D.F.") amended complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).*fn1 Defendants move to
dismiss, claiming there has been no violation of: Plaintiff's right to freedom of
speech under the First Amendment, Plaintiff's right to procedural
or substantive due process under the Fifth and
Fourteenth Amendments, Plaintiff's right to equal protection under the Fifth
and Fourteenth Amendments, Plaintiff's right to be free from
unreasonable search and seizure under the Fourth Amendment,
Plaintiff's rights under New York Public Health Law § 2504, or
Plaintiff's rights under the New York State Constitution.
Defendants also move on the ground that a suit for damages under
42 U.S.C. § 1983 is barred by the Eleventh Amendment, and that
they are protected by qualified immunity. Defendant Kassebaum
joins in the Defendants' motion and additionally moves to dismiss
the defamation claim against him.
For the following reasons, Defendants' motion to dismiss is
GRANTED as to all of Plaintiff's claims.
Plaintiff D.F. is a 12 year-old boy who brings this suit by his
parent and guardian, Andrew Finkle. The case arises from the
following events. At the start of the 2003-2004 school year,
Philip Kaiser ("Kaiser"), Plaintiff's English teacher, assigned
his sixth grade students to keep a long-term journal "expressing
thoughts, concerns, or feelings." (Am. Compl. ¶ 9) Kaiser told
the students that they could utilize such forums as poems or
short stories. (Am. Compl. ¶ 10) As part of his journal
assignment, Plaintiff wrote the fictional story entitled, "Costume Party," which he says is modeled after the horror movie
Halloween. (Def. Hankin's Mem. Dis. at 2) The story involved a
boy named "Dylan," a horror movie fan who was bullied by other
children at school and desired revenge. (Def. Hankin's Ex. B) In
the third chapter of the story, Dylan, wearing a costume similar
to that worn by the villain in Halloween, stabs a boy named
"Matt Cohen" (described as a "mean kid") in the head. (Id.)
Dylan then goes on a killing spree, stabbing other "bad kids."
(Id.) At one point in the story a female student is described
kissing a boy with her shirt off. (Id.) Dylan later walks in on
this same girl while she is engaging in intercourse with another
student, and chops off the girl's head with an axe. (Id.) Some
of the characters in the story were named after actual students
with whom Plaintiff went to school. (Am. Compl. ¶ 15) Plaintiff
had no prior disciplinary record at the time of writing the
story. (Am. Compl. ¶ 16)
On October 3, 2003, Kaiser arrived late to class and found
Plaintiff reading the story to the other students in the class.
(Am. Compl. ¶ 17) Kaiser first asked Plaintiff to sit down, but
then allowed him to continue reading the story because he was
preoccupied with checking attendance. (Id.) The same day, while
Plaintiff was at a voluntary program called "Latin at Lunch,"
Plaintiff asked permission to read his story to the other
approximately sixteen (16) students present. (Am. Compl. ¶ 21)
The instructor, Ms. St. Johns ("St. Johns"), requested that she read the story to herself first. (Def.
Hankin's Mem. Dis. at 3) St. Johns was disturbed by the story,
and brought the story to Principal Kassebaum. (Id.) Kassebaum
then suspended Plaintiff for five (5) days (Am. Compl. ¶ 26) and
sent a notice to Plaintiff's parents informing them of the dates
of the suspension. (Am. Compl. ¶ 28) The day before the
suspension was to begin, however, Plaintiff was not allowed to
attend his classes. (Am. Compl. ¶ 29) Also, at the direction of
the School District and Kassebaum, a school psychiatrist
performed a number of psychological tests on Plaintiff. (Id.)
Plaintiff's parents were neither informed of nor given the
opportunity to consent to the psychological testing. (Am. Compl.
¶ 30) According to the complaint, on October 8, 2003, Kassebaum
communicated with the parents of two (2) other students and told
them that Plaintiff had engaged in "threatening behavior" towards
their children and "harassment of a deviant sexual nature." (Am.
Compl. ¶ 32)
On October 21, 2003, after the five-day suspension, a
Superintendent's hearing was held. (Am. Compl. ¶ 37) At the
hearing, the School District alleged three (3) violations of the
School District's Code of Conduct: (i) threatening the use of a
weapon, (ii) harassment, and (iii) intent to intimidate or
threaten other students. (Id.) Plaintiff's parents were
informed beforehand that a Superintendent's Hearing would be
held. (Am. Compl. ¶ 35) According to the complaint, Plaintiff's parents had notice of all of the charges
except for the harassment charge. (Am. Compl. ¶ 37) The School
District chose Sharon Berlin, Esq. ("Berlin") as the Hearing
Officer. (Am. Compl. ¶ 38) Berlin was an attorney with Rains &
Pogrebin, P.C., a firm routinely hired by the School District.
(Am. Compl. ¶ 39)
At the hearing, no students testified to being threatened or
harassed by Plaintiff. (Am. Compl. ¶ 47) However, the School
District introduced over the objection of Plaintiff's attorney
statements from students describing their reaction to
Plaintiff's story. (Am Compl. ¶ 50) The students who made the
proffered statements were never identified and Plaintiff's
attorney was never permitted to question these students. (Am.
Compl. ¶ 51) Kaiser, St. Johns, Kassebaum, Ms. Grenzig, the
Assistant Principal, and Plaintiff's parents all testified at the
hearing. (Def. Hankin's Mem. Dis. at 4) Berlin concluded that
Plaintiff's "story was designed to place individuals in fear of
bodily harm" and Plaintiff, through his story, was guilty of
"threatened use and/or contemplated use of a weapon in violation
of the Code of Conduct." (Def. Hankin's Ex. D at 2002-02) Berlin
recommended sustaining all three (3) charges brought against
Plaintiff and that Plaintiff be suspended from school for thirty
(30) days. (Am. Compl. ¶ 54) Hankin followed the recommendation
and subsequently suspended Plaintiff for thirty days. (Am. Compl.
¶ 59) Plaintiff alleges violations of his First, Fourth, Fifth, and
Fourteenth Amendment rights. Plaintiff also brings claims for
violation of New York Public Health Law § 2504, and the
Constitution of the State of New York. Plaintiff brings a State
law claim for defamation against Defendant Kassebaum. Lastly,
Plaintiff brings a claim for damages under 42 U.S.C. § 1983.
Plaintiff appealed the thirty-day suspension by letter to the
School Board, dated October 28, 2003. The School Board denied the
appeal. Plaintiff then appealed the decision to the Commissioner
of Education, who also denied the appeal. On October 1, 2004,
Plaintiff filed a complaint in this court and on March 3, 2005
filed an amended complaint. On July 18, 2005, Defendants filed a
motion to dismiss the amended complaint. Oral argument was heard
on the motion on July 28, 2005, and decision was reserved.
"A dismissal under Rule 12(b)(6) is a dismissal on the merits
of the action a determination that the facts alleged in the
complaint fail to state a claim upon which relief can be
granted." Nowack v. Ironworkers Local 6 Pension Fund,
81 F.3d 1182, 1187 (2d cir. 1996). A district court should deny a motion
to dismiss for failure to state a claim under 12(b)(6) "unless it
appears to a certainty that a plaintiff can prove no set of facts
entitling him to relief." Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc.,
748 F.2d 774, 779 (2d Cir. 1984) (citing Cloney v. Gibson,
355 U.S. 41, 45-56 (1957)). The Court must confine itself to a
consideration of the facts that appear on the face of the
complaint. Ryder, 748 F.2d at 779.
The Court may dismiss the complaint for lack of subject matter
jurisdiction under 12(b)(1) if it lacks the statutory or
constitutional power to adjudicate the case. Nowack,
81 F.3d at 1187. The standards for dismissal under 12(b)(6) and 12(b)(1) are
virtually identical. Lerner v. Fleet Bank, N.A., 318 F.3d 113,
128 (2d Cir. 2003) (citing Moore v. Painewebber, Inc.,
189 F.3d 165, 1781-79 (2d Cir. 1999)). The only practical distinction
is that "the party invoking the jurisdiction of the court has the
burden of proof in a 12(b)(1) motion, in contrast to a 12(b)(6)
motion, in which the defendant has the burden of proof."
Lerner, 318 F.3d at 128 (citing Thompson v. County of
Franklin, 15 F.3d 245, 248 (2d Cir. 1994)).
The defamation claim against Kassebaum is the only claim that
is specific to any single Defendant. Therefore, the analysis of
all the ...