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Vassallo v. Lando

October 31, 2008


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


Plaintiff Patricia Vassallo (hereinafter, "plaintiff") brought this action on behalf of her son, K.V., against defendants Valley Stream Central High School District ("the District"), Stephen Lando ("Lando"), Principal of Valley Stream South Junior/Senior High School, and Marc F. Bernstein, Superintendent of the District schools, pursuant to 42 U.S.C. § 1983. This lawsuit arises from a search of K.V. conducted by defendant administrators at Valley Stream South Junior/Senior High School on February 14, 2006, while K.V. was an eleventh grade student at the school. The search consisted of a search of K.V.'s personal belongings, outer garments and parts of his person. Lando, with the authorization of Superintendent Bernstein and with the assistance of a local law enforcement agent, conducted the search of K.V.'s belongings based on his suspicion that K.V. was involved in starting a fire that had been set that day in the third floor boys' bathroom, and then, upon finding evidence suggesting marijuana use in his backpack, searched his outer garments and parts of his person based on the suspicion that he was in possession of drugs. Plaintiff brings claims pursuant to 42 U.S.C. § 1983 for compensatory and punitive damages alleging that the selection of her son, who is Caucasian, for a search violated his Fourteenth Amendment right to equal protection under the theory of "selective enforcement" based upon race and disability, as well as a "class of one" theory. Plaintiff also argues that the search that ensued violated her son's Fourth Amendment protection against unreasonable search and seizure.

Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on all claims.*fn1 For the reasons that follow, defendants' motion is granted in its entirety. In particular, it is undisputed that: (1) K.V. was in the hallway on the third floor in the vicinity of the fire shortly after the fire alarm sounded; (2) upon making eye contact with his teacher in the hallway, K.V. said nothing, put up the hood of his sweatshirt, quickened his pace, and covered the lower part of his face; (3) upon searching K.V.'s backpack for evidence related to the fire (such as matches, lighters, or an accelerant), Lando found marijuana seeds; (4) at the direction of Lando and a police officer, K.V.'s sweatshirt, shoes, and socks were removed and his shirt and pants legs lifted, but his pants and shirt were never removed; and (5) upon observing a bulge in his waistband, K.V. was directed to remove the object and K.V. removed a bag containing a small amount of marijuana from his waistband.

Given these undisputed facts, the Court concludes as a matter of law that defendants are entitled to summary judgment on the Fourth Amendment claim because, under the Supreme Court's decision in New Jersey v. T.L.O., 469 U.S. 325, 333 (1985), the search was justified at its inception and was reasonably related in scope at all times to the circumstances that justified the intrusion. In any event, at a minimum, defendants would be entitled to qualified immunity on this claim given these undisputed facts.

Similarly, with respect to the equal protection claim, although two unidentified non-Caucasian students were running in the hallway in the vicinity of the fire, it is undisputed that: (1) Lando did not have the names of these students at the time of incident; and (2) in the three days following the fire, Lando interviewed a number of students who (based on school documents) were out of the their classrooms at the time of the fire, including students of races different than K.V., but was not able to determine who was responsible for the fire. Given these undisputed facts, no rational jury could conclude that K.V. was interviewed and searched on the day of the fire based upon his race (and/or his learning disability) under a theory of selective enforcement, nor is there any legal or factual basis for a "class of one" claim. Thus, summary judgment for defendants on the equal protection claim also is warranted. In short, although plaintiff points to a number of factual disputes that plaintiff argues preclude summary judgment, none of those factual disputes create a genuine issue for trial because, even on plaintiff's version of events, the Fourth and Fourteenth Amendment claims fail as a matter of law.


The facts related below are taken from the parties' depositions, exhibits and respective Local Rule 56.1 statement of facts. 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 incident which forms the basis for plaintiff's cause of action, K.V. was an eleventh grade student at Valley Stream South Junior/Senior High School. (Defendants' Local 56.1 Statement of Material Facts ("Defs.' 56.1") ¶ 1.)*fn2 On February 14, 2006, K.V. was assigned to ninth period study hall, which was held in a classroom on the southeast end of the third floor of the school building. (Defs.' 56.1 ¶¶ 2-3; K.V. Dep. at 18-19, 23-24, 53; Reape Aff. Ex. C.) Shortly after the start of the ninth period, K.V. was excused from study hall to conduct research in the library, which was located on the first floor almost directly below the study hall classroom. (Defs.' 56.1 ¶¶ 4-5; K.V. Dep. at 20-21, 24-25; Reape Aff. Exs. C, D.) After completing his research some ten to fifteen minutes later, K.V. traveled to the second floor to retrieve a pen from his locker, located on the second floor in the north hallway. (Defs.' 56.1 ¶¶ 9-11; K.V. Dep. at 29-30, 33, 38-39; Reape Aff. Exs. C, D.) Two to three minutes later, K.V. then proceeded to the third floor via Stairway D, located on the northeast corner of the building. (Defs.' 56.1 ¶¶ 12-13; K.V. Dep. at 34, 38, 133; Reape Aff. Ex. C.)

Soon after the beginning of ninth period, a fire was reported in the boys' bathroom located on the north side of the third floor of the building. (Plaintiff's Local 56.1 Statement of Material Facts ("Pl.'s 56.1") ¶ 14; Lando Dep. at 51-52, 56-57; Reape Aff. Ex. C.) A Caucasian student, C.H., was walking towards that bathroom when he encountered an African-American student walking away from it. (C.H. Dep. at 25-26.) After entering the bathroom and witnessing the fire, C.H. attempted to report the fire to a teacher, Mr. Lee, who was already aware of it. (Pl.'s 56.1 ¶¶ 14-15; C.H. Dep. at 15.)*fn3 C.H. then returned to his classroom and reported the fire to his teacher, Ms. Lowe. (C.H. Dep. at 23.) According to plaintiff, when the fire alarm sounded, K.V. was walking up Stairway D to the third floor. (Defs.' 56.1 ¶ 18; K.V. Dep. at 40-41; Reape Aff. Ex. C.) As K.V. walked down the east corridor from the stairway toward his study hall classroom, he saw two younger male students running down the corridor from the direction of the bathroom. (Defs.' 56.1 ¶¶ 19-21; K.V. Dep. at 42-45.) K.V. identified the two students as African- American and Hispanic, respectively. (Pl.'s 56.1 ¶ 20(a); K.V. Dep. at 42-45.)

After the two students ran past K.V., he encountered a teacher, Mr. Boyd, in the east corridor. (Defs.' 56.1 ¶ 23; K.V. Dep. at 46- 48.) K.V. made eye contact with Mr. Boyd, pulled up the hood of his sweatshirt, covered the lower part of his face, quickened his pace, and proceeded to walk past him without speaking. (Defs.' 56.1 ¶¶ 26-29; K.V. Dep. at 55-57, 63-65, 67-70; Boyd Hearing Tr. at 151.)*fn4

After the building was evacuated, C.H. spoke with Lando and informed him that he had seen an African-American student walking down the corridor of the third floor where the bathroom fire occurred, moments prior to discovering the fire; he did not identify the student by name. (C.H. Dep. at 25-26.) Soon thereafter, Mr. Boyd informed Lando that he had seen K.V. walking around the corner from the corridor where the fire took place and that he had also seen two younger students whom he could not identify running down that same hallway.*fn5 (Boyd Hearing Tr. at 154.) Lando asked Mr. Boyd to bring K.V. to his office. (Defs.' 56.1 ¶ 33; Lando Dep. at 64.) Approximately twenty minutes after the evacuation was complete, Mr. Boyd and another teacher approached K.V. in the parking lot of school, informed him that Lando wanted to see him, and escorted him to Lando's office. (Defs.' 56.1 ¶¶ 34-36; K.V. Dep. at 70-74, 76.) Lando told K.V. at that time that he was suspected of starting the fire in the bathroom and that he intended to search his personal belongings and outer garments for evidence of K.V.'s involvement in the fire, such as matches, lighters or accelerants. (Defs.' 56.1 ¶¶ 39, 41-43; K.V. Dep. at 75-78, 89; Lando Dep. at 90-94, 100.) K.V. informed Lando that he had encountered two other students in the immediate vicinity of the fire soon after the fire alarm sounded, but could not identify them by name. (Lando Dep. at 156.) K.V. denied that he started the fire and stated that Lando had no right to search him. (Defs.' 56.1 ¶¶ 40, 44; K.V. Dep. at 77-79; Lando Dep. at 91.) Lando stated that if K.V. did not consent to the search, he would call a police officer to conduct the search by force. (Defs.' 56.1 ¶ 45; K.V. Dep. at 78, 87, 108.)

When K.V. refused to consent to the search, a law enforcement officer, Officer Marc A. Howell of the Nassau County Police Department, was called to Lando's office. (Defs.' 56.1 ¶ 46; K.V. Dep. at 90.) K.V. then gave his backpack to Lando because he felt he had no choice in the matter, and Lando searched the backpack after the police officer had arrived. (Defs.' 56.1 ¶¶ 47-48; K.V. Dep. at 87-91, 95.) Lando, upon looking inside the backpack, discovered marijuana seeds. (Defs.' 56.1 ¶¶ 51-52; K.V. Dep. at 95, 120; Lando Dep. at 102.) Lando also recovered rolling papers from K.V.'s belongings.*fn6 (K.V. Dep. at 95, 120; Lando Dep. at 102, 118-19.) Lando had suspended K.V. for marijuana use in the past. (Defs.' 56.1 ¶ 55; P. Vassallo Dep. at 23-27.) The discovery of the seeds led Lando to suspect that K.V. was in possession of marijuana; accordingly, he told K.V. that he was going to further search him. (Defs.' 56.1 ¶¶ 54, 56; K.V. Dep. at 89, 95, 97, 122; Lando Dep. at 103.) K.V. protested this search. (Defs.' 56.1 ¶ 57; K.V. Dep. at 97-98.)

K.V.'s guidance counselor, Mr. Corsantino, called his mother and asked her to come to the school. (Defs.' 56.1 ¶ 58; K.V. Dep. at 98.) K.V. did not ask that the search be delayed until his mother was present, and it proceeded before her arrival. (Defs.' 56.1 ¶¶ 59-60; K.V. Dep. at 123, 124-27.)

According to K.V., Lando told him the following: "Lando said he wanted to search my person and he said he wants to take my shoes off, lift up my legs, lift up my shirt, take my socks off and all of that, and I didn't want to." (K.V. Dep. at 99.) Officer Howell was present for this search and, according to K.V., told him that he needed to follow Lando's instruction or he would be forcibly searched. (Id. at 106-08.) Thus, at the direction of Lando and Officer Howell, K.V. removed his shoes, socks and sweatshirt. (Defs.' 56.1 ¶¶ 66, 68-69; K.V. Dep. at 100-01, 103-05, 108; Lando Dep. at 112.) Officer Howell lifted up K.V.'s pants legs to expose his lower legs.*fn7 (Pl.'s 56.1 ¶¶ 68-69; K.V. Dep. at 106-09.) Officer Howell and Lando directed K.V. to lift the bottom of his t-shirt to expose his waistband. (K.V. Dep. at 112.) K.V. felt that this order constituted a strip search. (Id. at 113-17.) After K.V. lifted his shirt, Lando spotted a bulge just below the waistband of K.V.'s boxer shorts. (Defs.' 56.1 ¶ 71; Lando Dep. at 113.) Lando and Officer Howell then instructed K.V. to remove the object causing the protrusion. (Defs.' 56.1 ¶ 73; Lando Dep. at 113-15; K.V. Dep. at 112-17.) K.V. denied that he had anything in his waistband and then refused to remove said object. (Defs.' 56.1 ¶ 75; K.V. Dep. at 112-13; Lando Dep. at 115.) After a few minutes of back and forth between K.V. and Lando regarding whether he would remove the object or not, K.V. withdrew a bag that contained other small bags of marijuana from his waistband. (Defs.' 56.1 ¶ 77; K.V. Dep. at 114- 16; Lando Dep. at 115-16.) Officer Howell arrested K.V. for possession of marijuana. (Defs.' 56.1 ¶ 79; K.V. Dep. at 128-29; Lando Dep. at 121.)

In the three days following the fire, Lando obtained the identities of all students who were out of their classrooms at the time of the fire and conducted interviews and/or obtained written statements from at least eight such students, including two students who were African- American. (Lando Dep. at 133-46). Lando, however, was unable to determine who started the fire from this additional investigation.


On May 8, 2008, defendants filed the instant motion for summary judgment. Plaintiff submitted her opposition to the motion on July 21, 2008. Defendants submitted a reply to plaintiff's opposition on July 31, 2008. Oral argument was held on October 3, 2008.


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). In particular, "the moving party has the burden of showing that no genuine issue of material fact exists and that the undisputed facts entitle him to judgment as a matter of law." Connecticut Criminal Defense Lawyers Ass'n v. Forst (In re State Police Litig.), 88 F.3d 111, 123 (2d Cir. 1996) (citation omitted). 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 W. 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. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted). "[W]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'shp, 22 F.3d 1219, 1224 (2d Cir. 1994).


Defendants make several arguments in support of their motion for summary judgment: (1) there is insufficient evidence for the equal protection claim of discrimination based on race and/or disability to survive summary judgment; (2) there is insufficient evidence for an equal protection "class of one" claim to survive summary judgment; (3) based upon the undisputed facts, the search of K.V. was justified at its inception and reasonable in its scope under the Fourth Amendment; and (4) Lando and Bernstein are entitled to qualified immunity on the Fourth Amendment claims. For the reasons set forth below, the Court agrees and grants defendants' motion on all claims.

A. Equal Protection Claims

The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Here, plaintiff brings claims pursuant to the Equal Protection Clause under two different theories: "selective enforcement" and "class of one."*fn8 (See Plaintiff's Memorandum of Law, at 17 ("Plaintiff has averred two Equal Protection Claims, pursuant to the Fourteenth Amendment. The first claim is a bad faith selective prosecution claim, based on impermissible race plus disability considerations. Secondly, Plaintiff also claims a 'Class of One' Equal Protection Claim.").)

1. Selective Enforcement

Plaintiff brings an equal protection "selective enforcement" claim, pursuant to Le Clair v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980), arguing that Lando overlooked the other students present in the vicinity of the fire and chose to question and search only K.V. on account of his race and/or disability. However, as set forth below, no rational jury could find in favor of defendant based upon the undisputed facts in this case and, thus, such claim cannot survive summary judgment.

a. Legal Standard It is well settled that plaintiffs must meet a two-pronged test in order to successfully demonstrate selective enforcement under the Fourteenth Amendment. Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007).

i. Similarly Situated*fn9

First, plaintiff must demonstrate that he "was treated differently from other similarly situated [individuals]." Id. (citations and quotation marks omitted); see also Church of the Am. Knights of the KKK v. Kerik, 356 F.3d 197, 210 (2d Cir. 2004) ("A selective enforcement claim requires, as a threshold matter, a showing that the plaintiff was treated differently compared to others similarly situated."). In particular, at the summary judgment stage, a "plaintiff must present evidence comparing [himself] to individuals that are 'similarly situated in all material respects.'" Sebold v. City of Middletown, No. 3:05 civ 1205, 2007 U.S. Dist. LEXIS 70081, at *81 (D. Conn. Sept. 21, 2007) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). Finally, when a plaintiff attempts to prove selective enforcement "on the basis of his race, he 'must show that similarly situated individuals of a different race were not [subjected to the offensive conduct].'" Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000) (citing United States v. Armstrong, 517 U.S. 456, 465 (1996)).

Further, "[a]s a general rule, whether items are similarly situated is a factual issue that should be submitted to the jury." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir. 2001) (explaining that the abovereferenced "rule is not absolute, however, and a court can properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met"); accord Kirschner v. Zoning Bd. of Appeals, 924 F.Supp. 385, 394 (E.D.N.Y. 1996).

ii. Impermissible Considerations

With respect to the second prong, the Second Circuit has held that a plaintiff must demonstrate that the "differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Cine SK8, Inc., 507 F.3d at 790 (citations and quotation marks omitted); see also Freedom Holdings, Inc. v. Int'l Tobacco Partners, Ltd., 357 F.3d 205, 234 (2d Cir. 2004) ("To establish a violation of the Equal Protection Clause based on selective enforcement, a plaintiff must ordinarily show the following: '(1) [that] the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'") (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999)). "To prevail, plaintiffs must prove that the disparate treatment was caused by the impermissible motivation." Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir. 2005); see also Crowley v. Courville, 76 F.3d 47, 53 (2d Cir. 1996) (stating that a "demonstration of different treatment from persons similarly situated, without more, would not establish malice or bad faith").

b. Application

With respect to the "similarly situated" element of a selective enforcement claim, after reviewing the record in the light most favorable to plaintiff and drawing all reasonable inferences in her favor, the Court concludes that the plaintiff has failed to raise a genuine issue of material fact over whether K.V. was similarly situated to the three other students that Lando was told were located near the bathroom fire at ...

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