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P.W. v. Fairport Cent. School Dist.

United States District Court, W.D. New York

February 25, 2013

P.W. and D.W., Individually, and as Parents and Guardians of H.W., a minor, Plaintiffs,
v.
FAIRPORT CENTRAL SCHOOL DISTRICT, et al., Defendants.

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[Copyrighted Material Omitted]

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Jeffrey Wicks, Jeffrey Wicks, PLLC, Rochester, NY, for Plaintiffs.

Bryan N. Georgiady, The Law Firm of Frank W. Miller, East Syracuse, NY, for Defendants.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Plaintiffs, P.W. and D.W., individually, and as parents and guardians of H.W., a minor, (" Plaintiffs" ), bring this action against the Fairport Central School District (the " District" ), John Hunter, Superintendent of the District, David Dunn, Principal at the Martha Brown Middle School (" Martha Brown" ), Nicholas Cocilova, a counselor at Martha Brown, Brent Provenzano, Principal at the Johanna Perrin Middle School (" Johanna Perrin" ), Kevin Henchen, Assistant Principal at Johanna Perrin, Dan Parsons, a gym teacher at Johanna Perrin, and other known or unknown members of the District (collectively, " Defendants" ). Plaintiffs allege that the Defendants inadequately responded to peer-on-peer bullying, which was both sexual and non-sexual in nature, violating state and federal law. Plaintiffs specifically allege a cause of action pursuant to 42 U.S.C. ยง 1983,[1] negligent infliction of emotional distress and negligent hiring, supervision and training. (Docket No. 1.)

Defendants move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, contending that Plaintiffs have not set forth a plausible claim to relief. Plaintiffs oppose the motion. For the reasons set forth below Defendants' motion to dismiss is granted in part and denied in part. Plaintiffs' substantive due process claim is dismissed and Plaintiffs will be allowed to proceed with their claim under Title IX and their state law claims.

BACKGROUND

The following facts are taken from the complaint. (Docket No. 1.) Plaintiffs' son, H.W., attended Martha Brown during the sixth and seventh grades, from 2009 through 2011, until he transferred to Johanna Perrin for the 2011-2012 school year, as an eighth grade student. Plaintiffs

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allege that H.W. experienced peer-on-peer bullying at both schools and that teachers and administrators failed to adequately respond to H.W.'s and their complaints of bullying.

During the 2009-2010 school year, H.W. complained to school counselor Nicholas Cocilova (" Cocilova" ) about daily bullying by other students. The bullying included teasing and name calling, comments written on his locker, and students shoving him and stabbing him with pencils. Plaintiffs allege that Cocilova advised H.W. to ignore the behavior, but he did not inform principal David Dunn (" Dunn" ).

H.W. told his parents in March of 2011 that he was bullied at Martha Brown on a daily basis. Plaintiffs allege that H.W. experienced anxiety, headaches and light headedness due to the bullying, which caused him to miss classes and school days.

H.W. met again with Cocilova on March 25, 2011, and he complained about the conduct of two specific peers. Plaintiffs then requested a meeting with Cocilova and Dunn to deal with the problem. Dunn, in response, stated in an April 4, 2011 e-mail that he was unaware of the situation, but that he would meet with Cocilova and H.W. " to discuss this and come up with a plan to make sure it doesn't happen any more."

On April 4, 2011, Dunn and Cocilova met with H.W. and one of the peers of which he complained. At the meeting, Dunn reprimanded the student. Dunn then called Plaintiffs to inform them of the meeting and his opinion that the bullying would not continue. H.W. left school later that day due to anxiety and did not return to school the following day. On April 5, 2011, Dunn and Cocilova met with the other peer of which H.W. had complained.

Plaintiffs allege that " [professional educational literature does not support [an] approach which humiliates the bully thus setting the stage for further confrontation between victim and bully." Plaintiffs allege that following theses meetings the bullying worsened and other students began to bully H.W.

Plaintiffs then met with Dunn on April 29, 2011. They allege that Dunn initially claimed that he thought there had been a good resolution to the bullying. Dunn then stated, " I think we are all trying to get our heads around what's real and what's ultra-high anxiety. Are kids really saying his name in the hall or is he thinking he's hearing his name in the hall." Dunn then told Plaintiffs he " would have [their] son's back." He later told them that he would personally monitor the hallways while H.W. walked from Social Studies to Technology class.

Then, on May 5, 2011, H.W. was approached by two lacrosse players while he was standing at his locker, and one of them " jammed" a lacrosse stick into H.W.'s buttocks. H.W. attempted to stop the students, but they proceeded to stick the lacrosse stick into his buttocks a second time. After the incident, Dunn stated that " the students are great when they are in class. They are pretty good kids. Eight hundred kids in the hall without ...


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