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Kenney v. Genesee Valley Board of Cooperative Educational Services

February 6, 2008


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action alleging freedom-of-speech retaliation claims, pursuant to the First Amendment of the United States Constitution and the New York State Constitution, as well as state-law claims for defamation, prima facie tort, intentional infliction of emotional distress and negligent infliction of emotional distress. Now before the Court is Defendants' motion [#8] to dismiss Plaintiff's entire complaint, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). For the reasons that follow, Plaintiff's free-speech retaliation claims are dismissed with prejudice, and the Court will decline to exercise supplemental jurisdiction over the remaining claims, pursuant to 28 U.S.C. § 1367(c)(3).


The following facts, taken from the Complaint, are accepted as true for purposes of this motion. At all relevant times the Genesee Valley Board of Cooperative Educational Services ("BOCES") was an educational organization located in LeRoy, New York. Michael Glover ("Glover") was the Superintendent of BOCES. Plaintiff Edward Kenney ("Plaintiff") was employed by BOCES as a School Resource Officer and Criminal Justice Instructor, and was also employed as a police officer by the Village of Mt. Morris, New York. In or about September 2006, while teaching a class at BOCES, Plaintiff made a "power point presentation to other teachers [on the topic] of law enforcement and ballistics." (Complaint ¶ 7). According to the Complaint, "[t]he substance of the Plaintiff's audio and video presentations involved the science and math of ballistics and the effects of bullets on human bodies, which subjects constituted genuine issues of public concern and interest to the classes being taught by the Plaintiff." (Id. at ¶ 8). Significantly, for purposes of this action, Plaintiff's presentation included a video recording, apparently obtained from a police agency, of an individual committing suicide by shooting himself in the head with a handgun ("the suicide video").

According to the Complaint, the suicide video was "directly related to the law enforcement curriculum which the Plaintiff was employed . . . to teach," and was "presented as . . . a means of providing instructional materials and information to other teachers." (Id. at ¶ ¶ 9,14). The Complaint further alleges that at least two of Plaintiff's supervisors, including BOCES' Director of Instruction and the Principal of the Building in which Plaintiff taught, had approved Plaintiff's use of the suicide video.

Nevertheless, Defendant Glover, the BOCES Superintendent, determined that the suicide video was inappropriate, and consequently, he suspended Plaintiff. Later, on or about September 21, 2006, Glover told Plaintiff that unless he resigned, his employment would be terminated immediately. According to the Complaint, Glover's actions were directly related to Plaintiff's use of the suicide video. (Complaint ¶ 7) ("The Plaintiff was informed by . . . Glover, that the reason for the suspension and subsequent forced resignation and/or termination concerned the content of an instructional video shown by the Plaintiff.") However, the Complaint also alleges that Glover was motivated, "at least in part," by a desire to punish Plaintiff in retaliation for Plaintiff's prior arrest of a BOCES student, which, according to Plaintiff, Glover had wanted to "suppress and cover up." (Id. at ¶ 19).*fn1 Also on September 21, 2006, Glover allegedly "threatened Plaintiff's livelihood," and told Plaintiff that he would have Plaintiff arrested if Plaintiff ever "set foot" back on BOCES' property, even if he did so in his capacity as a police officer. (Id. at ¶ 18).

Following Plaintiff's "forced resignation and/or termination," BOCES called a staff meeting and announced that Plaintiff had "resigned." (Id. at ¶ 21). Subsequently, "numerous" faculty and staff contacted Plaintiff "to find out what was going on," which caused Plaintiff embarrassment and humiliation. (Id. at ¶ 23).

On or about August 6, 2007, Plaintiff commenced this action in New York State Supreme Court, Genesee County. The Complaint alleges the following claims: 1)

"violat[ation of] the Plaintiff's U.S. Constitution's First Amendment Freedom of Speech rights and his Freedom of Speech rights pursuant to the New York State Constitution"; 2) prima facie tort; 3) defamation; 4) intentional infliction of emotional distress; and 5) negligent infliction of emotional distress. (Complaint ¶ ¶ 20, 27). On September 10, 2007, Defendants removed the subject action to federal court.

Subsequently, on September 14, 2007, Defendants filed the subject motion to dismiss. In that regard, Defendants contend that the "free speech" claims must be dismissed, because the Complaint does not allege that Plaintiff engaged in protected activity. Defendants also maintain that the defamation claim must be dismissed, since the Complaint fails to identify a defamatory statement and fails to allege special damages. As for the prima facie tort claim, Defendants contend that it fails to allege special damages and also fails to allege that Defendants acted with disinterested malevolence. Finally, Defendants contend that the intentional infliction of emotional distress claim and the negligent infliction of emotional distress claim are deficient, since the former fails to allege extreme or outrageous conduct, while the latter fails to allege that Plaintiff was put in fear for his physical safety.

In opposition to the motion, Plaintiff maintains that his Complaint adequately states claims for which he is entitled to relief, and alternatively, requests leave to "amend his Complaint and to re-plead any allegations of his Complaint, without prejudice [sic], to correct any defects in his pleadings as directed by [the] Court." (Plaintiff's Memo of Law at 4). With regard to amending the complaint, Plaintiff has not submitted a proposed amended complaint or otherwise indicated how he might amend the current Complaint.

On January 31, 2008, counsel for the parties appeared before the undersigned for oral argument of the motion. The Court, having thoroughly considered the parties' written submissions and the arguments of counsel, now dismisses Plaintiff's free-speech retaliation claims with prejudice, and declines to exercise ...

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