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September 12, 2005.

D.F., by his Parent and Natural Guardian, ANDREW FINKLE, Plaintiff,
BOARD OF EDUCATION OF SYOSSET CENTRAL SCHOOL DISTRICT; JAMES KASSEBAUM, Both Individually and in His Capacity as Principal of the HARRY B. THOMPSON MIDDLE SCHOOL; and CAROLE G. HANKIN, Both Individually and in Her Capacity as Superintendent of the SYOSSET CENTRAL SCHOOL DISTRICT, Defendants.

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.

  Factual Background

  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.

  Procedural Background

  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 ...

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