The opinion of the court was delivered by: Lindsay, Magistrate Judge
REPORT AND RECOMMENDATION
The plaintiff Harry Binder commenced this action on behalf of his minor son Sam Binder ("Binder") on September 29, 2009, against Cold Spring Harbor School District (the "District"), Helen Browne ("Browne"), and Judith Wilansky ("Wilansky"). This case arises due to the District's suspension of Binder for possession of large quantity of marijuana contained in a gallon-sized bag and several individual baggies, drug paraphernalia, and a cigarette. Binder's complaint alleges, under 42 U.S.C. §§ 1981, 1983, violations of the Fourth Amendment's prohibition of unlawful search and seizures and the Fourteenth Amendment's due process clause. On October 5, 2009, District Judge Feuerstein denied the plaintiff's motion for a temporary restraining order seeking to compel the District to re-enroll Binder. Before the court upon referral from Judge Feuerstein is the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the undersigned respectfully recommends that the motion be granted.
Defendant Browne is the Assistant Principal of Cold Spring Harbor High School. (Defs.' Ex. C at 10-11.) On March 26, 2009, a teacher informed Browne that Binder and another student smelled of marijuana. (Id. at 11-12, 51.) Browne separated the students in her office and placed Binder in a room where a security guard was present. (Id. at 12-13, 72-73.) As soon as the boys were separated, Browne could smell marijuana in the room where Binder was located. (Id. at 41-42.) Browne told Binder that a teacher had stated that Binder smelled of marijuana and that something was heard "rattling around your chest area." (Id. at 13.) Binder denied that he was carrying marijuana. (Id.) Browne then asked Binder to empty his pockets, upon which Binder partially complied by producing a cigarette, one or two empty plastic baggies, a driver's license, and a piece of metal. (Id. at 14, 26-29.) Binder acknowledged that the cigarette was his. (Id. at 14.) Binder withheld from disclosure a small bag of marijuana that remained in his pocket. (Id. at 24.)
Browne then told Binder that she wanted to examine his backpack. (Id. at 14.) Browne testified that Binder did not refuse, although Binder testified that Browne did not ask his permission. (Id. at 15, 129.) The security guard searched Binder's backpack and removed a large clear plastic bag and several smaller clear plastic baggies containing what the school officials concluded was marijuana. (Id. at 15, 18, 22-25; Defs.' Ex. D at 1.) After this discovery, Binder voluntarily reached into his back pocket and removed another small bag of marijuana. (Defs.' Ex. C at 24, 92-93.) Browne, who was familiar with both the smell and appearance of marijuana, could smell marijuana through the bags although she did not open them. (Id. at 15-21, 53.) Browne told Binder that he was in a tremendous amount of trouble. (Id. at 25.) Binder said very little and did not deny that the bags had been recovered from his belongings. (Id.) Browne then went to get the school's principal Jay Matuk ("Matuk"). (Id. at 30, 77.)
Matuk testified that after speaking with Browne he went to the room where Binder and the security officer were located and saw the clear plastic bags on the table. (Id. at 79.) Matuk opened one of the bags smelled its contents, examined the cigarette, and reviewed the other items. (Defs.' Ex. C at 79-80.) Based upon his past school experiences, Matuk was able to immediately identify the substance in the bags as marijuana. (Id. at 82-83, 89, 91.) Matuk also identified the metal object as being part of a marijuana pipe.*fn1 (Id. at 80-81.) Matuk questioned Binder, who denied knowing the items were in his backpack or how they got there. (Id. at 81.) Binder, however, did not deny that the items were removed from his backpack. (Id.) Matuk told Binder that this was a serious matter and asked him to be candid. (Id. at 81-82.) Binder persisted in his claim of ignorance. (Id. at 82.) Matuk then questioned Binder about the small bag of marijuana which he had removed from his pocket. (Id. at 91-92.) At first, Binder could not explain its presence, but then offered the explanation that he had discovered the marijuana in his backpack and had removed the baggie in an attempt to discard it. (Id. at 93, 120.) Binder persisted in his claim that he did not put the marijuana in his backpack, adding that he had no idea who might have done so. (Id. at 94.)
Possession of cigarettes, marijuana, and drug paraphernalia is a violation of the school's code of conduct. (Id. at 94-96.) Pursuant to New York Education Law § 3214(3)(c), a hearing before a hearing officer was held on April 1, 2009. Prior to the hearing, Binder received notice that he was charged with possession of marijuana, drug paraphernalia, and a cigarette on school premises. (See Defs.' Ex. B.) The notice further advised Binder of his rights, including to be represented by counsel, to confront witnesses, and to present evidence and his own witnesses. At the hearing, Binder himself testified. Binder's father, an attorney licensed in the state of New York, questioned Binder, cross-examined the defendants' witnesses, made objections, testified himself, and gave a closing statement.
At the conclusion of the hearing, the officer found Binder guilty of the charges and made numerous findings of fact. (Defs.' Ex. C at 165-68.) These findings included that: (1) the substance found in Binder's possession was marijuana; (2) the metal object in Binder's pocket was drug paraphernalia; (3) a teacher reported that Binder smelled of marijuana on the day in question; (4) Browne smelled marijuana on Binder; (5) Binder voluntarily emptied his pockets; and (6) Binder admitted possession of the cigarette. (See Defs.' Ex. E at 4-6.)
The officer then conducted a sentencing phase of the hearing and took additional testimony from Matuk and Binder's father. (Defs.' Ex. C at 168-89.) The officer memorialized his recommendations in a written decision, which recommended that Binder be suspended through the end of the following semester in January 2010, or for approximately ten months. (See Defs.' Ex. E.) In making this recommendation, the hearing officer noted that Binder was found in possession of a very large quantity of marijuana, a substantial portion of which was in smaller bags for apparent distribution. (Id. at 7.) The hearing officer also noted that Binder had not demonstrated any remorse for his actions and had instead "chosen to lie" rather than accept responsibility. (Id.) Thus, the hearing officer did not credit what he termed a "feeble attempt, under oath, to disclaim ownership of the marijuana."*fn2 (Id.)
After reviewing the written decision as well as the hearing transcript and exhibits, the District's superintendent Wilansky adopted the officer's report, including that Binder be suspended through January 2010. (See Defs.' Ex. G.) Binder appealed to the District's school board, which upheld Wilansky's findings and penalty. (Defs.' Ex. J.) Binder appealed the suspension to the New York State Commissioner of Education, the state administrative agency that oversees the state's public schools. That appeal was still pending as of the submission of the foregoing motion.
Binder's complaint alleges that: (1) Browne's search of Binder was illegal because she lacked reasonable suspicion; and (2) the hearing violated Binder's due process rights. The defendants now move to dismiss the complaint under Rule 12(b)(6) because: (1) this court is precluded from reconsidering findings of fact determined by the hearing officer; (2) Browne's search of Binder was reasonable as a matter of law; (3) Browne has failed to allege a violation of procedural or substantive due process; and (4) Browne and Wilansky are protected from liability under the sovereign immunity doctrine.
In reviewing the defendants' motion to dismiss under Rule 12(b)(6), the court must accept the complaint's allegations as true and draw all reasonable inferences in the plaintiff's favor. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). To meet this requirement, the complaint must show "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability ...