The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
In accordance with 28 U.S.C. §636(c), the parties have consented to
jurisdiction by a United States Magistrate Judge .*fn1
Before me is defendants' motion to dismiss plaintiff's
Amended Complaint pursuant to Fed. R. Civ. P. ("Rule") 12(c) . For
the following reasons, defendants' motion is granted in part and
denied in part.
The facts of this case were previously set forth in my Decision and Order dated September 17, 2010 , in which I granted defendants' motion to dismiss without prejudice to the filing of an Amended Complaint. Plaintiff has since filed an Amended Complaint .*fn2
Defendants argue that the Amended Complaint should be dismissed because:
1) they are not state actors; 2) the Amended Complaint still fails to allege sufficient facts to establish a constitutional violation; 3) the Amended Complaint does not allege that any unconstitutional conduct was the result of an official custom or policy; and 4) defendant Kristina Lesh is entitled to qualified immunity. Defendants' Memorandum of Law [42-1].
Rule 12(c) provides that "[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings". Rule 12(c). "Courts faced with motions under Rule 12(c) apply the same standard used to decide motions brought under Rule 12(b)(6)." Matwijko v. Board of Trustees of Global Concepts Charter School, 2006 WL 2466868, *2 (W.D.N.Y. 2006) (Arcara, J./Schroeder, M.J.).
B. Plaintiff's Section 1983 Claim
"In order to maintain a section 1983 action, two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).
Defendants argue that as a matter of law, charter schools are not state actors. Defendants' Memorandum of Law [42-1], pp. 3-7. Construing the Amended Complaint liberally, I conclude that plaintiff adequately alleges that defendants are state actors by alleging that defendants acted "under color of law", that Tapestry Charter School ("Tapestry") "is a tuition-free Public School operating under the State University of New York Board of Trustees", and that Tapestry is "so involved with government as to be functioning as and indistinguishable from a public entity". Amended Complaint , ¶¶2-4.
As I indicated in my initial Decision and Order (, p. 5), although there is case law to the contrary, charter schools have been held to be state actors for purposes of Section 1983. See Matwijko, 2006 WL 2466868 at *3-5 (denying defendants' motion to dismiss under Rule 12(c), where the court held defendant charter school was a state actor for the purposes of §1983); Scaggs v. New York State Department of Education, 2007 WL 1456221, *13 (E.D.N.Y. 2007) ("claims addressing the nature and quality of ...