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Booker v. Board of Education

August 29, 2006

ROGER BOOKER AND MILDRED BOOKER, INDIVIDUALLY AND AS PARENTS AND GUARDIANS OF MINOR DAUGHTER, ELISABETH, PLAINTIFFS,
v.
BOARD OF EDUCATION, BALDWINSVILLE CENTRAL SCHOOL DISTRICT; THEODORE GILKEY, IN HIS OFFICIAL CAPACITY AS DEPUTY SUPERINTENDENT OF BALDWINSVILLE CENTRAL SCHOOL DISTRICT; JEANNE RACE, IN HER OFFICIAL CAPACITY AS DEPUTY SUPERINTENDENT OF BALDWINSVILLE CENTRAL SCHOOL DISTRICT; IRVING GRAY, IN HIS OFFICIAL CAPACITY AS PRINCIPAL OF DURGEE JUNIOR HIGH SCHOOL; JOSEPH LAZARSKI, IN HIS OFFICIAL CAPACITY AS PRINCIPAL OF DONALD RAY MIDDLE SCHOOL; KARENDONAHUE, IN HER OFFICIAL CAPACITY AS ASSISTANT PRINCIPAL AT DONALDRAY MIDDLE SCHOOL; ANDREA FRASCATORE, IN HER OFFICIAL CAPACITY AS TEACHER AT DURGEE JUNIOR HIGH SCHOOL, DEFENDANTS,



The opinion of the court was delivered by: Howard G. Munson, Sr. J.

MEMORANDUM DECISION AND ORDER

Currently before the court is a motion by defendants' counsel and their insurer, Utica Mutual Insurance Company, to recover attorneys' fees in the amount of $21,799.55 from the plaintiffs, under 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 54 and 11. Plaintiffs have entered opposition to this motion.

The court first notes that a motion for sanctions under Federal Rule of Civil Procedure 11(c) must be made separately from other motions or requests and must specify the conduct alleged to violate Rule 11(b). Perpetual Securities, Inc. v. Tang, 290 F.3d 132, 141-42 (2d Cir.2002). Because defendants' request for sanctions was not made separately from their motion for attorneys fees, it is procedurally flawed and must be denied.

BACKGROUND

During the period the events in the instant case took place, Elisabeth Booker ("Elisabeth") resided with her parents and guardians, plaintiffs Roger and Mildred Booker, ("the Bookers")in the Baldwinsville, Central School District (the "District"). In the 1998-99 school year, Elisabeth attended the District's Ray Middle School, and in 1999-00, she finished the eighth grade at Durgee Junior High School. The Bookers instituted a lawsuit naming as defendants, the District, and in their official capacities, Dr. Gilkey, the District's chief executive officer; Jeanne Race, the District's assistant superintendent until November 2001; Irving Grey ("Grey"), principal of Durgee Middle School; Joseph Lazarski ("Lazarski"), principal of Ray Middle School: and Karen Donahue ("Donahue"), Ray Middle School's assistant principal in 1998-99. The complaint alleged, inter alia, that these defendants, failed to implement proper disciplinary proceedings against certain classmates who Elisabeth contends harassed her. The complaint also alleged that Elisabeth's math teacher, Andrea Frascatore, ("Frascatore") violated Elisabeth's civil rights by assigning her to sit in a study carrel during class periods because she repeatedly talked in class.

The second amended complaint alleged that defendants' actions violated 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. § 2000d - Title VI of the Civil Rights Act of 1964. The relief sought compensatory and punitive damages, costs and attorney fees.

In 1991, Congress amended § 1981 to include a provision that, "The rights protected by this section are protected against impairment by non-governmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). Where defendants to a lawsuit are state actors § 1981 claims merge into § 1983 claims. Because § 1981 provides no broader remedy against a state actor than § 1983 and since they merge into one another, the court need provide no further analysis on this point. The § 1981 claim is treated exactly like the § 1983 claim, becomes merged into it and is considered as a single claim. Pearson v. Macon-Bibb County Hospital Authority, 952 F.2d 1274, 1278 n. 3 (11th Cir.1992); Anderson v. Conboy, 156 F.3d 167, 176 (2d Cir. 1998).

On May 8, 2002, defendants moved for summary judgment dismissing the second amended complaint. plaintiffs entered opposition to the motion.

This court granted defendants' summary judgment motion as to Plaintiffs' §1983 claims against all defendants. plaintiffs' Title VI claim was also dismissed because it failed to allege that the School District was the recipient of federal financial aid, but this was done without prejudice to Plaintiff's right to amend their complaint to satisfy their pleading burden under Title VI if they did so within thirty days of the entry of the court's Order. Booker v. Board of Education, Baldwinsville Central School District, 238 F. Supp.2d 469, 474, 476 (N.D.N.Y. 2002).

Plaintiffs then timely filed a properly plead third amended complaint naming as defendants the Baldwinsville Central School District Board of Education and Theodore Gilkey, Superintendent of Schools for the Baldwinsville Central School District, and alleging that they violated Title VI - 42 U.S.C. § 2000-d, by engaging in discriminatory practices while receiving federal funds.

Defendants' again moved for summary judgment. This court granted the motion. and dismissed the complaint in its entirety.

Defendants subsequently filed their motion for attorneys' fees.

DISCUSSION

Plaintiffs contend that defendants are not entitled to attorneys' fees under Rules 54 and 11 or 42 U.S.C. ยง 1988, because their motion was not timely filed. Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure states that, "[u]nless otherwise provided by statute or order of the court," any motion ...


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