This case is before the Court on defendants' motion to dismiss plaintiff's first and third causes of action, and a portion of plaintiff's second cause of action. For the reasons outlined below, defendants' application is granted in its entirety.
Plaintiffs alleged*fn1 four causes of action in a complaint filed on August 9, 2005 with the New York State Supreme Court, 7th Judicial District,*fn2 as follows: (1) defendants' actions violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a); (2) defendants violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d*fn3 ; (3) defendants violated plaintiff N.L.'s rights to equal protection as guaranteed by "Section 1983 of the Civil Rights Law."; (4) defendants negligently failed to act on plaintiffs' complaints.
On September 12, 2005, defendants removed the case to this Court and then, on September 22, 2005, moved to dismiss plaintiff's first and third causes of action, and a portion of plaintiff's second cause of action. In their complaint, plaintiffs allege that 14-year-old N.L., is an Hispanic*fn4 male, was a student at Webster-Thomas High School. Plaintiffs further allege that from the beginning in September of 2004, N.L. was subjected to racial and national original harassment by two other students, identified in the complaint as R.M. and A.M., both of whom, it is alleged, rode the same school bus with him. Further, plaintiffs state that despite numerous complaints to defendants, the harassment continued. Plaintiffs also allege that N.L. told defendant Mary Kidd, "that he could not take the harassment any longer, and that should it happen again, he would fight back and may hit his tormentors."
(Compl. ¶ 23.) Plaintiffs then allege that on October 6, 2005, when N.L. was again harassed, on the "basis of his race*fn5 and/or national origin."*fn6 "N.L. could no longer contain himself and struck R., and a fight ensued." (Compl. ¶ 25.) As a result of the fight, N.L. was suspended for five days, while "his tormentor, who for weeks, has been harassing N. on the basis of his race and/or national origin, received only a three day suspension." (Compl. ¶ 28.) The complaint does not specify which "tormentor" was suspended, though the Court will assume it was R.M. for the sake of this motion. Plaintiffs further contends that N.L.'s pediatrician pulled him out of school as a result of the emotional distress caused by the harassment.
To prevail on a motion for dismissal under Rule 12, a defendant must show that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[a] (Matthew Bender 3d ed.). "In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).The Court must view the complaint, and draw all reasonable inferences, in the light most favorable to the non-moving party. Id.; see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[b] (Matthew Bender 3d ed.) (court must accept plaintiff's factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," FED. R. CIV. P. 8(f). On a Rule 12(b)(6) motion, the issue before the Court "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
Finally, while the plaintiff need not set out in detail the facts upon which he bases a claim, he must provide the "defendant fair notice of the nature of the claim and the grounds upon which it rests." Washington v. James, 782 F.2d 1134, 1140 (2d Cir. 1986) (quoting Conley v. Gibson, 355 U.S. 41, 47 ). Where the allegations are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, they are meaningless as a practical matter and legally insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)(citing Ostrer v. Aronwald, 567 F.2d 551, 553 [2d Cir. 1977]; Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976); Powell v. Jarvis, 460 F.2d 551, 553 [2d Cir. 1972]).
Parisi v. Coca-Cola Bottling Co., 995 F. Supp. 298, 300--01 (E.D.N.Y. 1998). Equal Protection Claim Title 42, section 1983, furnishes a cause of action for the violation of one's federal rights created by the Constitution. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979). It provides, in relevant part:
Every person who, under color under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. A § 1983 claim has two essential elements: (1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or privileges. See Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir. 1994). With regard to an equal protection claim, the Second Circuit has held, "[t]he Equal Protection Clause of the Fourteenth Amendment to the United States Constitution 'is essentially a direction that all persons similarly situated should be treated alike.'" Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439) (other citations omitted). Thus, to establish an equal protection violation on the basis of selective prosecution, a plaintiff must show that: "(1) compared with others similarly situated, he was selectively treated; and (2) such selective treatment was based upon impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to ...