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Mac Ineirghe v. Board of Education of the East Islip Union Free School Dist.

August 22, 2007


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Plaintiffs Thomas and Eileen Mac Ineirghe brought this action individually and on behalf of their son, I.M. (hereinafter, "plaintiffs"), against defendants Board of Education of the East Islip Union Free School District ("the Board of Education"), Rhia Warren ("Principal Warren"), John E. Flynn ("Flynn"), and Deborah Y. Smith ("Smith").

This lawsuit arises out of searches of I.M. on September 23, 2004 by administrators at East Islip High School, while I.M. was a tenth-grade student at the school. The searches consisted of a vital signs check by the school nurse, a search of I.M.'s person and bags, an initial saliva drug test, and three subsequent saliva drug tests later that same day. Defendants conducted the searches based upon their suspicion that I.M. was using, or in possession of, drugs and therefore argue, among other things, that the searches were justified under the Fourth Amendment.

Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on all claims. For the reasons that follow, defendants' motion is granted in part and denied in part. Specifically, with the exception of the Fourth Amendment and state battery claims against the individual defendants as it relates to the three subsequent drug tests of I.M. later in the day on September 23, the Court grants the summary judgment motion on all other claims.



The facts described below are taken from the parties' depositions, declarations, affidavits, exhibits and respective Local Rule 56.1 statements of facts.*fn1 Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).

At the time of the complained-of incidents, I.M. was a tenth-grade student at East Islip High School ("East Islip"). (Plaintiff's Local 56.1 Statement of Material Facts ("Pls.' 56.1"), ¶ 1.)*fn2 On September 23, 2004, at approximately 10:35 a.m., I.M. and another student, K.B., were in the school parking lot during school hours, which was not allowed. (Id. ¶ 3; I.M. Aff. ¶ 3.) Defendant Flynn, who was head of security for East Islip, saw the two students on the security cameras; the students were running out of the gym doors to the parking lot. (Flynn Dep. at 32-33.) Flynn testified that he then went outside after the boys. (Flynn Aff. at 35.) According to I.M., a security guard was at the school entrance waiting for the boys when they returned, and the security guard told them to wait while he went to get Flynn, the head of security. (I.M. Dep. at 40-44.) The boys were outside for approximately one to three minutes. (Flynn Dep. at 37; I.M. Aff. ¶ 3.) According to Flynn, the boys hid when they saw him. (Flynn Aff. at 36.) Plaintiff, however, denies ducking and hiding between cars to avoid detection. (I.M. Dep. at 37.) Flynn escorted I.M. and K.B. to the office of defendant Warren who was the principal of East Islip Union Free School District (hereinafter "the District"). (Pls.' Aff. ¶ 4.)

According to Principal Warren, when the students were brought in, I.M. appeared very nervous and agitated. (Warren Aff. ¶ 3.) In particular, according to Principal Warren, I.M. repeatedly wiped his nose and rubbed his eyes, and the other student's eyes were red, and the student kept putting Visine into them. (Id.) Principal Warren also stated that, when she asked the other student what he had been doing that made his eyes red, he blurted out that he does not smoke "weed." (Id.) Principal Warren was also informed by security that I.M. had attempted to flee, rather than come to the Principal's Office as directed. (Id. ¶ 4.) According to plaintiff at his deposition, although he was wiping his nose and rubbing his eyes in the Principal's Office, he was doing so because he was sick (but did not advise anyone of any illness at the time). (I.M. Dep. at 125-26.) Plaintiffs admit that I.M. was nervous, but contend that I.M. was not highly agitated and his eyes were not red. (Pls.' 56.1 ¶ 6.)

According to Principal Warren, based upon the boys' suspicious behavior, including I.M.'s nervous state, she had cause to believe that I.M. was under the influence of illegal drugs and, thus, decided to follow the District's established procedure regarding students believed to be using drugs. (Warren Aff. ¶ 5.) First, Principal Warren directed the school nurse to take I.M.'s blood pressure, which was elevated at 160/80, and his pulse, which was also elevated at 120. (Id. ¶ 7.) The school nurse also noted that I.M.'s pupils were slightly constricted, but equal and reactive. (Veryzer Dep. at 23.) Although I.M. had a slightly elevated pulse and blood pressure and constricted eyes, the nurse concluded his vital signs were within normal parameters and saw nothing specifically demonstrating drug use. (Id. at 15-17.)

Principal Warren then had I.M. and K.B. searched and tested for drugs. (Pls.' 56.1 ¶ 7.) The search included I.M.'s book bag, shoes, and pockets. (Id. ¶ 8.) No drugs were found on I.M. (Id. ¶ 9.) Thereafter, Flynn administered a drug test using an oral, salivabased drug screening kit. (Id. ¶ 12.)

K.B. tested positive.*fn3 (Pl.'s Dep. at 83-84.) There is a dispute regarding the circumstances and results of I.M.'s initial saliva test. According to defendants, the results of the test were void because I.M. frustrated the validity of the test by sucking and biting on the test wand. (Warren Aff. ¶ 15.) I.M., however, states that he was fully compliant during the test and that he was told by Principal Warren that he had passed the test. (I.M. Aff. ¶ 7.) Warren denies telling I.M. that he had passed the test. (Warren Aff. ¶ 16.) Instead, Warren stated that, due to I.M.'s very nervous demeanor, she sent him back to class around 11:15 a.m. in the hope that he would calm down. (Id. ¶ 17.)

I.M. then went to see the Assistant Principals, who told him that he was going to receive a one-day in-school suspension for going outside, and sent him back to class. (I.M. Aff. ¶ 8.)

Later that day, at approximately 12:45 p.m., I.M. was taken out of class and, at Principal Warren's direction, three more saliva drug tests were administered by Flynn. (Id. ¶ 9.) According to Principal Warren, a remark by the other student at some point - namely, "How could he [i.e., I.M.] come up negative?" - gave her additional reason to believe that I.M. had been using a prohibited substance. (Warren Aff. ¶ 18.) Principal Warren stated that, during each of the three subsequent saliva tests, I.M. deliberately mangled each test by biting and chewing on the swab, despite direction not to do so, and, therefore, each test was rendered void. (Id. ¶ 19.) According to I.M., he cooperated fully during each of the drug tests. (I.M. Aff. ¶ 9.) Principal Warren attempted to give I.M. a fifth drug test, but I.M. refused. (I.M. Aff. ¶ 10.) I.M.'s father was contacted and arrived soon thereafter, accompanied by I.M.'s brother. (Id. ¶ 10; Warren Aff. ¶ 26.)

I.M. was extremely upset and I.M. regained control of his conduct after his father, Mr. Mac Ineirghe, struck him in the face.*fn4 (Pls.' 56.1 ¶ 21; Warren PINS Testimony at 18.) As a result of I.M.'s conduct, he was suspended for five days. (Pls.' 56.1 ¶ 22.) Upon return from the suspension, on October 1, 2004, I.M. was placed in an in-school suspension class for the day. (I.M. Aff. ¶ 15.) He returned to his regular classes the following school day, which was a Monday. (Id.) Plaintiffs challenged the suspension and the reasons for the suspension by appeal to the Commissioner of Education. (Pls.' 56.1 ¶ 23.) The appeal is still pending. (Id.)

I.M. was later referred by the District's mental health professionals to the Family Court's Persons In Need of Supervision ("PINS") program. (Id. ¶ 25.) This referral led to a hearing in Family Court, Suffolk County, which took place over the course of several days. (Id. ¶ 26.) Numerous witnesses, including I.M. and the other parties to the present lawsuit, gave testimony regarding I.M.'s behavior leading up to his suspension and the day he returned from his suspension. (Id. ¶ 27.) The court, sitting as the factfinder, weighed the testimony of the various witnesses. (Id. ¶ 28.) The court concluded that I.M. was a "Person in Need of Supervision." (Id. ¶ 30.) Plaintiffs appealed the determination to the Appellate Division, Second Department. (Id. ¶ 32.) On October 24, 2006, the Appellate Division rendered a decision and order affirming the disposition of the Family Court. (Pls.' Ex. N.)


This case was removed from state court on September 13, 2005. On March 31, 2006, this case was re-assigned from the Honorable Arthur D. Spatt to the undersigned. On November 20, 2006, defendants filed the instant motion for summary judgment. Oral argument was held on December 22, 2006. At oral argument, the Court granted plaintiffs an opportunity to amend their complaint to clarify their claims and issued a schedule for supplemental briefing on defendants' motion. Pursuant to that schedule, plaintiffs filed the amended complaint on January 4, 2007. Supplemental briefing was completed on February 9, 2007.


The standards for summary judgment are well-settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50 (internal citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).


Defendants make several arguments in support of their summary judgment motion: (1) plaintiffs' claims are barred by the doctrines of res judicata and collateral estoppel because of the prior litigation in Family Court regarding the PINS petition; (2) plaintiffs' Fourth Amendment claims must be dismissed because the searches of I.M. by the defendants were reasonable as a matter of law; (3) even if there is a material issue of fact as to the reasonableness of the searches, summary judgment is warranted under the doctrine of qualified immunity; (4) plaintiffs' due process claim cannot survive summary judgment because plaintiffs did not exhaust their administrative remedies and, in any event, such claim must fail because sufficient process was provided to plaintiffs as a matter of law; and (5) there is no private right of action with respect to plaintiffs' claim under New York Education Law. The Court will address each of these issues in turn.

A. Res Judicata and Collateral Estoppel

Defendants argue that plaintiffs' complaint must be dismissed on the grounds of res judicata and collateral estoppel because their claims and the issues raised in their complaint were decided in the Family Court decision that was rendered in connection with the PINS petition and hearing. As set forth below, the Court finds this argument unpersuasive.

The doctrine of res judicata, otherwise known as claim preclusion, prevents parties from re-litigating issues in subsequent litigation that were or could have been litigated in a prior action. See Allen v. McCurry, 449 U.S. 90, 94 (1980). "In applying the doctrine of res judicata, [a court] must keep in mind that a state court judgment has the same preclusive effect in federal court as the judgement would have had in state court." Burka v. N.Y.C. Transit Auth., 32 F.3d 654, 657 (2d Cir. 1994). New York courts apply a transactional analysis of res judicata, "`barring a later claim arising out of the same factual grouping as an earlier litigated claim even if the later claim is based on different legal theories or seeks dissimilar or additional relief.'" Id. (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). The doctrine applies only if "(1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir. 2000) (citations omitted).

However, "[b]ecause res judicata does not apply to a § 1983 claim for damages where the previous litigation did not involve damages, the question is whether the plaintiff[s'] claims are barred by collateral estoppel." Velez v. Reynolds, 325 F. Supp. 2d 293, 305 (S.D.N.Y. 2004) (citing Phifer v. City of New York, 289 F.3d 49, 56 (2d Cir. 2002)). "In determining whether an issue is barred in the federal action, courts must apply the collateral estoppel rules of the state in which the prior decision was rendered." Providencia V. v. Schutlze, No. 02-CV-9616 (LTS), 2007 U.S. Dist. LEXIS 39980, at * 11 (S.D.N.Y. May 31, 2007) (citing Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000)). Collateral estoppel, also known as issue preclusion, applies under New York law if "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the first proceedings." Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 94 (2d Cir. 2005) (internal quotation marks omitted). "The party seeking the benefit of collateral estoppel bears the burden of proving the identity of the issues, while the party challenging its application bears the burden of showing that he or she did not have a full and fair opportunity to adjudicate the claims involving those issues." Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991) (citing Kaufman v. Eli Lilly & Co., 482 N.E.2d 63, 67 (N.Y. 1985)).

In the instant matter, the Second Department found that "the petition was based upon, inter alia, the appellant's outburst in the principal's office and his refusal to behave in the in-school suspension room, not upon his refusal to comply with an allegedly improper drug test or search." East Islip High School v. Ian M., 824 N.Y.S.2d 305, 306 (N.Y. App. Div. 2006). Thus, to the extent plaintiffs are continuing to challenge the PINS referral in this litigation, that issue was actually and necessarily decided by the Family Court and affirmed by the Second Department, and plaintiffs had a full and fair opportunity to present their claims in that proceeding. However, plaintiffs argue that the issues raised in their amended complaint - wrongful search, physical examination and four drug tests - are issues that were not litigated and determined in the PINS proceeding. (Pls.' Mem. at 2.) The Court agrees.

When a plaintiff brings a § 1983 action in federal court that challenges the constitutionality of a state official's conduct after a family court has already passed on related issues, the federal court must carefully analyze the individual claims in light of the family court's ultimate findings of fact and legal conclusions and the information that was presented to it. See, e.g., Park v. City of New York, No. 99-CV-2981 (LBS), 2003 U.S. Dist. LEXIS 578, at *28 (S.D.N.Y. Jan. 16, 2003) (applying this standard, as announced in Phifer, 289 F.3d at 57, where parents challenged child removal and neglect proceedings). Here, the Family Court was presented with the facts of the underlying incidents, including testimony of witnesses regarding the search and drug testing. This testimony was summarized in the Family Court's decision, judgment, and order dated October 25, 2005. Defendants argue that, because plaintiffs advanced facts regarding the search of I.M.'s person and bag, as well as the nurse's examination and drug testing in support of a justification defense in the PINS hearing, plaintiffs had a full and fair opportunity to litigate the issues, which were allegedly decided by the Family Court when it rejected the defense. This Court disagrees. The Family Court did not rule on or address the legality or constitutionality of the search of I.M.'s person and bag, the nurse exam, or the drug tests. Though information regarding these actions was presented to the Family Court, the court did not make factual findings or legal conclusions regarding the legality of such actions. Instead, the opinion states:

The Court is constrained to note that, although the primary thrust of the Respondent's defense seems to revolve around a theory that this PINS Petition is a punishment for the alleged use of illicit drugs, no such allegations are contained within the Petition. Moreover, the evidence adduced clearly shows that the actions taken by the Petitioner were not premised upon any alleged drug use by the Respondent, but rather due to his incorrigibility and his failure to attend classes as required by the Education Law. Indeed, all the references to alleged drug use were raised by Respondent's counsel, and were not part of Petitioner's direct case.

(Defs.' Ex. C at 4.) In light of the Family Court's findings of fact and legal conclusions, this Court finds that the Family Court did not pass upon the issues of the constitutionality of the search of I.M., the nurse's examination and the drug testing. Though some of the relevant facts were presented to the court, the court did not determine those operative facts, as it concluded that they were not relevant to the PINS Petition ...

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