The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Christina Perrin ("Christina"), commenced this action against the Canandaigua (New York) City School District ("District") and several District employees and officials, asserting various civil rights claims on behalf of her son, Nicholas Perrin ("Nicholas") and herself. Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Four of the five defendants--the District, Donald W. Raw, Jr., James Simmons, and Dr. Steven Uebbing ("District defendants")--filed their motion to dismiss on June 13, 2008. The fifth defendant, Richard Romeo, represented by separate counsel, filed a motion to dismiss on July 16, 2008.
On June 16, 2008, the Court issued a scheduling order (Dkt. #9) giving plaintiffs until July 16, 2008 to respond to the District defendants' motion to dismiss. Plaintiffs (who are represented by counsel) did not do so. On August 4, 2008, the Court issued another scheduling order (Dkt. #15) giving plaintiffs until September 5, 2008 to respond to Romeo's motion to dismiss. Again, plaintiffs did not do so.
On October 31, 2008, the Court issued a third order (Dkt. #16), which "directed [plaintiffs] to file some response by November 14, 2008," and to "either submit papers in opposition to the motion[s]," or to advise the Court that plaintiffs "consent to the relief requested." The order noted that plaintiffs were in default on both motions to dismiss, and stated that "[f]ailure to respond as directed will leave the Court no choice but to treat the motions as unopposed."
Plaintiffs have still filed no response to either motion, nor have they communicated with the Court in any way since the motions were filed. Accordingly, the Court treats the motions as unopposed. The motions to dismiss may be granted on that ground alone.
Even I were to decide the motions on their merits, however, I would grant them and dismiss the complaint. Plaintiffs' allegations, even if true, simply do not state a cognizable federal claim.
The gist of plaintiffs' claim is that defendant Romeo, who is a gym teacher and wrestling coach at Canandaigua Senior Academy, assaulted Nicholas, who was on the wrestling team, following a wrestling match on January 6, 2007. According to the complaint, Nicholas, who suffers from asthma, began having difficulty breathing during the match, and attempted to call a timeout. Romeo allegedly called Nicholas a "pussy" and ordered him to "get his ass back on the mat" and continue the match, which Nicholas did, apparently without suffering a full-blown asthma attack. Complaint ¶ 22.
Plaintiffs allege that after the match, Nicholas and Romeo "exchanged words," whereupon Romeo "pull[ed Nicholas's] arms behind his back, force[d] him through the door to the locker room and started to punch and poke him in the chest while berating him with the use of foul, profane and demeaning language." Complaint ¶ 24.
Some time after this incident, Christina contacted the Canandaigua Police Department, and criminal charges were brought against Romeo. The District allegedly was publicly supportive of Romeo, and plaintiffs were subjected to public ridicule and harassment. Complaint ¶ 30. Based on these allegations, plaintiffs have asserted several claims, all of which, as stated, must be dismissed.
Count I, which purports to assert a conspiracy claim under 42 U.S.C. §§ 1983 and 1985, is barred by the intracorporate conspiracy doctrine, under which "officers, agents and employees of a single corporate entity are legally incapable of conspiring together." Hartline v. Gallo, No. 03 Civ. 1974, 2006 WL 2850609, at *9 (E.D.N.Y. Sept. 30, 2006), aff'd in pertinent part for reasons stated by district court, vacated on other grounds in part, ___ F.3d ___, 2008 WL 4489846, at *2 n. 3 (2d Cir. 2008). "The doctrine includes allegations of conspiratorial conduct between a public entity and its employees," id., and although "[a]n exception to the intracorporate conspiracy doctrine applies to individuals within a single entity when they are pursuing personal interests wholly separate and apart from the entity," Quinn v. Nassau County Police Dep't, 53 F.Supp.2d 347, 360 (E.D.N.Y. 1999), a complaint that does not set forth factual allegations showing that any of the individual defendants acted with independent motives is subject to dismissal for failure to state a claim. See, e.g., Hartline, 2006 WL 2850609, at *9; Peters v. Molloy College of Rockville Centre, No. 07-CV-2553, 2008 WL 2704920, at *10-*11 (E.D.N.Y. July 8, 2008); Jeter v. New York City Dep't of Educ., 549 F.Supp.2d 295, 303 (E.D.N.Y. 2008); Bhatia v. Yale Univ., No. 3:06CV1769, 2007 WL 2904205, at *2 (D.Conn. Sept. 30, 2007). The complaint here sets forth no allegations indicating that any of the defendants acted in pursuit of some purely personal interests, so this claim must be dismissed.
Plaintiffs' § 1985 claim is also defective because it does not allege that defendants were motivated by any animus based on Nicholas's race or membership in a protected class. Such animus is an essential element of a § 1985 conspiracy claim, see Harris v. County of Nassau, ___ F.Supp.2d ___, 2008 WL 4425284, at *6 (E.D.N.Y. Sept. 29, 2008), and a complaint that fails to allege such animus is subject to dismissal. See, e.g., Belpasso v. City of New York, No. 07-Civ-3627, 2008 WL 2676579, at *6 (S.D.N.Y. July 2, 2008); Guarneri v. West, 518 F.Supp.2d 514, 519 (W.D.N.Y. 2007). See also Farid v. Bouey, 554 F.Supp.2d 301, 325 (N.D.N.Y. 2008) ("plaintiff's complaint lacks any allegation regarding race-based animus or his membership in a suspect class providing motivation for the defendants' parole denial. Accordingly, I find plaintiff's section 1985(3) cause of action is subject to dismissal on the merits, even assuming inapplicability of the intra-corporate conspiracy doctrine").
Plaintiffs' claims under 42 U.S.C. § 1981 are also fatally flawed because of the absence of any allegations of racial animus. To survive a motion to dismiss, a § 1981 claim "must allege a deprivation of civil rights that occurred due to racial discrimination." Liburd v. Bronx Lebanon Hosp. Center, No. 07 CIV. 11316, 2008 WL 3861352, at *8 (S.D.N.Y. Aug. 19, 2008). A complaint consisting of nothing more than "naked assertions, and setting forth no facts upon which a court could find" such animus is likewise subject to dismissal under Rule 12(b)(6). Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994). See, e.g., Liburd, 2008 WL 3861352, at *9; Britton v. The Gleason Works, No. 07-CV-6506, 2008 WL 3413902, at *4 (W.D.N.Y. Aug. 8, 2008).
To the extent that the complaint can be read as asserting an equal protection claim under the Fourteenth Amendment, it fares no better. The complaint fails to allege Nicholas's membership in a vulnerable class, or that he was treated differently from other similarly situated individuals and that there was no rational basis for the unequal treatment. See Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001); Ochoa v. City of West Haven, No. 3:08-CV-0024, 2008 WL 4426960, at *3 (D.Conn. Sept. 26, 2008); Assoko v. City of New ...