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Milton v. Valley Stream Central High School District

United States District Court, E.D. New York

March 1, 2018

CHRISTOPHER MILTON, and WENDY GUZMAN, individually and as parents and legal guardians of Plaintiff, Z.G.M., Plaintiffs,

          For Defendants: Valley Stream Central High School District, Valley Stream South High School, Maureen Henry, Kara Jacobson, Jacqueline Allen, Michael Mahler, Ellen Daniels, Barbara Madigan, “John Doe” Drumm, “John Doe” Geramina, Nurse Jane Doe and Caroline Bormann Gerald Stephen Smith, Esq.

          For Plaintiffs: Frederick K. Brewington, Esq, Matin Emouna, Esq.

          For J.C., a minor, “John Doe” Cannon and “Jane Doe” Cannon



         Christopher Milton and Wendy Guzman, individually and as parents and legal guardians of minor Z.G.M. (“Plaintiffs”)

         commenced this action against Valley Stream Central High School District, Valley Stream South High School, Maureen Henry, Kara Jacobson, Jacqueline Allen, Michael Mahler, Ellen Daniels, Barbara Madigan, “John Doe” Drumm, “John Doe” Geramina, Nurse Jane Doe, Caroline Bormann, J.C., a minor, and “John Doe” Cannon and “Jane Doe” Cannon, as parents and legal guardians of minor J.C., on January 9, 2015. (Compl., Docket Entry 1.) Z.G.M. was assaulted by J.C. while they were both students at Valley Stream South High School. On January 26, 2017, Plaintiffs voluntarily dismissed the claims against Kara Jacobson, Ellen Daniels, “John Doe” Drumm, and Nurse Jane Doe. (See Stip., Docket Entry 64; Electronic Order, January 30, 2017.) The remaining defendants affiliated with the school district--Valley Stream Central High School District (the “District”), Valley Stream South High School (the “School”), Maureen Henry, Jacqueline Allen, Michael Mahler, Barbara Madigan, “John Doe” Geramina, and Caroline Bormann (collectively the “District Defendants”)--have moved for summary judgment. (Dist. Defs.' Mot., Docket Entry 66.) For the reasons that follow, the District Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.


         I. Factual Background[1]

A. The Assault

         On January 16, 2014, Z.G.M., a student at Valley Stream South High School, left class to retrieve a book from his locker. (Z.G.M. 50-H Exam., Smith Decl. Ex. M, Docket Entry 67-15, 9:5-19, 12:14-21.) Z.G.M. testified that before he reached his locker, he saw J.C. in the hallway, who called him “Afro Man” and “Afro Jack” and began walking toward him. (Z.G.M. 50-H Exam. 13:12-16:21.) Z.G.M. testified that after retrieving the book, he began walking toward a stairwell to return to his class, and J.C. followed him while continuing to call him names. (Z.G.M. 50-H Exam. 17:9-18:3.) According to Z.G.M., before he reached the stairwell, J.C., who was “getting loud[, ] . . . started pushing up against [his] left shoulder, ” and Z.G.M. called J.C. “Chewbacca.” (Z.G.M. 50-H Exam. 19:6-22.) Afterward, Z.G.M. continued walking toward the stairwell. (Z.G.M. 50-H Exam. 23:21-24:7.) The next things he remembers is waking up in a wheelchair in the nurse's office. (Pls.' 56.1 Counterstmt. ¶ 294; Z.G.M. 50-H Exam. 23:21-25:22.)

         “John Doe” Drumm (“Drumm”) was a teaching assistant at the School. (Defs.' 56.1 Stmt. ¶ 26.) Drumm testified that at approximately 1:45 p.m., he observed Z.G.M. and J.C. standing “face to face, ” heard someone say “fuck, ” and saw J.C. punch Z.G.M. in the head. (Defs.' 56.1 Stmt. ¶¶ 29, 32.) Z.G.M. fell backwards, and Drumm testified that he ran over to see if he was okay. (Defs.' 56.1 Stmt. ¶¶ 33-34.) Drumm testified that when he laid Z.G.M. down on his back, he saw his “eyes rolling back” and yelled to several teachers to contact the nurse or call an ambulance. (Defs.' 56.1 Stmt. ¶ 35; Pls.' 56.1 Resp. ¶ 35.) Drumm testified that the nurse, Caroline Bormann (“Nurse Bormann”) arrived within two minutes and that he relayed what he saw, including that Z.G.M.'s eyes rolled back after the blow. (Defs.' 56.1 Stmt. ¶¶ 36, 38; Pls.' 56.1 Resp. ¶ 38.) However, Nurse Bormann later testified that Drumm did not mention Z.G.M's eyes rolling back. (Bormann Dep., Smith Decl. Ex. P, Docket Entry 67-18, 12:8-11.) Drumm subsequently completed an incident report and a police report describing the events he witnessed. (Defs.' 56.1 Stmt. ¶¶ 107-08.)

         Nurse Bormann testified that she was in her office when her secretary received a phone call about the incident and told her that a student had passed out. (Pls.' 56.1 Counterstmt. ¶ 56; Bormann Dep. 7:25-8:14.) She testified that when she arrived, she saw Z.G.M. lying on the floor in the hallway. (Defs.' 56.1 Stmt. ¶ 45.) The parties dispute whether Z.G.M. was alert and oriented when Nurse Bormann arrived; she testified that Z.G.M. was alert and oriented, (Bormann Dep. 12:3-7, 45:23-25), but a concussion checklist indicates confusion and memory loss (Concussion Checklist, Smith Decl. Ex. Q, Docket Entry 67-19), and the principal, Maureen Henry (“Principal Henry”), testified that Z.G.M. was not “fully alert, ” (Henry Dep., Smith Decl. Ex. B, Docket Entry 67-3, 12:8-9). The parties also dispute the extent to which Z.G.M. was able to answer questions. For example, the District Defendants allege that Z.G.M. was able to answer several questions asked by Nurse Bormann, while Plaintiffs maintain that Z.G.M. was “actually unconscious” when Nurse Bormann arrived and “was only able to answer questions with difficulty after he regained consciousness, [because his] memory was not intact.” (Defs.' 56.1 Stmt. ¶ 47; Pls.' 56.1 Resp. ¶ 47.) Nurse Bormann testified that she asked Z.G.M. to “squeeze her fingers and wiggle his feet, ” and found his eyes to be “round, equal and reactive.” (Defs.' 56.1 Stmt. ¶ 48; Bormann Dep. 14:7-20.) Plaintiffs deny that Z.G.M.'s eyes were “round, equal and reactive.” (Pls.' 56.1 Resp. ¶ 49.) Principal Henry testified that when she arrived, she observed that Z.G.M. was conscious and lying on the floor. (Defs.' 56.1 Stmt. ¶ 53.)

         At that point, Z.G.M. was transported to the Nurse's Office in a wheelchair. (Defs.' 56.1 Stmt. ¶ 56.) Principal Henry testified that she accompanied Z.G.M. to the Nurse's Office, where she asked questions about the incident and “tr[ied] to make him comfortable.” (Defs.' 56.1 Stmt. ¶¶ 57, 59; Henry Dep. 11:2-23.) However, Z.G.M. testified that Principal Henry was “intimidating [him]” and “tried to make it seem like [he] was the one who provoked . . . the incident.” (Pls.' 56.1 Resp. ¶ 59; Z.G.M. 50-H Exam. 28:7-16.) Z.G.M. testified that he was able to answer the questions asked by Nurse Bormann and Principal Henry without difficulty.[2] (Defs.' 56.1 Stmt. ¶ 60; Z.G.M. 50-H Exam. 28:4-6.) While in the office, Nurse Bormann completed the Concussion Checklist and noted complaints of pain “posterior [to the] right eye, ” that there was a loss of consciousness “reported by teacher, ” and that Z.G.M. did not remember the injury “at the time of the incident but slowly is coming back.” (Defs.' 56.1 Stmt. ¶ 61; Concussion Checklist.) Additionally, she circled “Yes” for “memory problems, ” “vacant stare/glassy eyed, ” “headache, ” and “feeling ‘dazed.'” (Concussion Checklist.) The parties dispute whether Nurse Bormann contacted Z.G.M.'s father, Christopher Milton (“Milton”) to inform him of the incident; the District Defendants allege that Nurse Bormann called him, while Plaintiffs allege that Milton was called by Wendy Guzman, Z.G.M.'s mother (“Guzman”), and that he never spoke with Nurse Bormann.[3] (Defs.' 56.1 Stmt. ¶¶ 64-66; Pls.' 56.1 Resp. ¶¶ 64-66.) However, it is undisputed that Nurse Bormann did call Guzman, and that while Z.G.M. waited for his mother to arrive, he complained of pain behind his right eye. (Defs.' 56.1 Stmt. ¶¶ 67-68.) Nurse Bormann testified that she told him to immediately alert her if he had changes in his vision. (Defs.' 56.1 Stmt. ¶ 69.)

         The Concussion Checklist indicated that Z.G.M.'s parents were advised to seek medical attention. (Defs.' 56.1 Stmt. ¶ 63.) There is some dispute regarding what Nurse Bormann advised Z.G.M.'s parents to do; Nurse Bormann testified that she told Guzman she needed to take Z.G.M. to a doctor “immediately.” (Bormann Dep. 29:24-25.) Guzman testified that Nurse Bormann told her to take the Concussion Checklist to Z.G.M.'s doctor and “see what they say” but that Nurse Bormann did not tell her to go immediately. (Pls.' 56.1 Resp. ¶ 63; Guzman 50-H Exam., Smith Decl. Ex. N, Docket Entry 67-16, 16:25-17:13.) At that point, Guzman testified that she demanded that Nurse Bormann call an ambulance because she was concerned about internal bleeding, and an ambulance was called. (Pls.' 56.1 Resp. ¶¶ 63, 74; Guzman 50-H Exam. 17:14-21.) Nurse Bormann acknowledged that she called an ambulance at Guzman's request, but also testified that she called after Z.G.M. complained of “seeing waves.”[4] (Defs.' 56.1 Stmt. ¶¶ 74, 76.) The police arrived first, and the ambulance arrived about twenty minutes later. (Pls.' 56.1 Counterstmt. ¶ 75; Bormann Dep. 31:11-32:22.)

         Principal Henry testified that at some point before the police and ambulance arrived, Guzman confronted her and asked why she had not called the police. (Pls.' 56.1 Counterstmt. ¶ 137; Henry Dep. 31:4-8.) Principal Henry explained that she did not call the police “because [she] felt there was no need for the police, because [Z.G.M.] didn't have any marks on his body, and [she] had the boy in the dean's office who did the punch and that [they] were trying to get to the story, ” but advised Guzman that she “had every right if she wanted to call the police.” (Defs.' 56.1 Stmt. ¶ 102; Henry Dep. 31:10-17.) Plaintiffs dispute that Principal Henry advised Guzman that she could call the police. (Pls.' 56.1 Resp. ¶ 102.) Milton testified that when he arrived at the School, he was told that Principal Henry was too busy to speak to him, but that he insisted on talking to her. (Pls.' 56.1 Counterstmt. ¶ 266; Milton 50-H Exam., Smith Decl. Ex. O, Docket Entry 67-17, 14:14-20.) He also testified that, when he and Principal Henry spoke, Principal Henry told him: “[w]ell, there is no sense in us talking, because your wife called the police. Your wife called the police. We don't handle business like this.” (Pls. 56.1 Counterstmt. ¶ 267; Milton 50-H Exam. 15:5-9.) However, Guzman indicated that she never asked that the police be contacted. (Guzman 50-H Exam. 18:20-23.)

         After Z.G.M. was taken to a hospital, he was diagnosed with an epidural hemorrhage which required emergency surgery. (Pls.' 56.1 Counterstmt. ¶ 278.) Since then, he has sought counseling from a therapist regarding the incident but has not sustained any further complications or ongoing symptoms. (Defs.' 56.1 Stmt. ¶ 130; Pls.' 56.1 Resp. ¶ 130.)

         B. The Investigation

         The assault occurred in the stairwell between the second and third floors. (Z.G.M. 50-H Exam. 24:4-25:15.) In January 2014, there were four security guards working at the School, including one security guard who monitored the second and third floors. (Pls.' 56.1 Counterstmt. ¶ 106; Allen Dep., Smith Decl. Ex. D, Docket Entry 67-5, 8:25-9:18.) Teachers were also assigned to monitor hallways, although no teacher was assigned to monitor the third floor at the time of the incident. (Pls.' 56.1 Counterstmt. ¶¶ 108-09; Allen Dep. 11:19-22.) There were no surveillance cameras on the second or third floor. (Pls.' 56.1 Counterstmt. ¶ 107; Allen Dep. 10:21-24.)

         According to School policy, a bullying incident is investigated by the principal, who will determine if the bullying allegation is credible. (Defs.' 56.1 Stmt. ¶¶ 12-13.) At Principal Henry's request, Michael Mahler (“Mahler”), the Dean of Students, brought J.C. to his office and requested a statement from J.C., which he provided. (Defs.' 56.1 Stmt. ¶¶ 80, 82-85; J.C. Stmt., Smith Decl. Ex. T, Docket Entry 67-22.) Mahler also contacted J.C.'s parents and obtained statements from two other students, E.M. and W.K. (Defs.' 56.1 Stmt. ¶¶ 86-88.) Mahler was not asked to obtain a statement from Z.G.M. (Defs.' 56.1 Stmt. ¶ 90.) When J.C. was in Mahler's office, Principal Henry arrived and asked J.C. what happened. (Defs.' 56.1 Stmt. ¶¶ 93-94.) J.C. told her that “there were words” between him and Z.G.M., that Z.G.M. pushed him and said “come on, let's fight, ” and then pushed him again, at which point he punched Z.G.M.[5] (Defs.' 56.1 Stmt. ¶ 94; Henry Dep. 16:6-16.) As part of the investigation, Principal Henry also spoke to W.K. and E.M., and J.C. and Z.G.M.'s teachers regarding why they were not in class. (Defs.' 56.1 Stmt. ¶¶ 95-98.) After speaking with them, she suspended J.C. for five days. (Defs.' 56.1 Stmt. ¶ 100; Pls.' 56.1 Resp. ¶ 100.) After the suspension, she continued to speak with witnesses. (Defs.' 56.1 Stmt. ¶ 105.) The matter was subsequently referred for a Superintendent's hearing, and J.C. was suspended for approximately one month. (Defs.' 56.1 Stmt. ¶ 106; Pls.' 56.1 Resp. ¶ 106.) In a criminal proceeding, J.C. was adjudicated a youthful offender and pleaded guilty to attempted assault. (Pls.' 56.1 Counterstmt. ¶¶ 254-55.)

         At some point, Principal Henry informed Guzman that disciplinary action had been taken against J.C.; however, Plaintiffs maintain that this occurred only after Guzman inquired and that Principal Henry did not specify how J.C. had been disciplined.[6] (Defs.' 56.1 Stmt. ¶ 112; Pls.' 56.1 Resp. ¶ 112.) In April 2014, Principal Henry sent Guzman and Milton a letter indicating that she conducted an investigation pursuant to the District's bullying and harassment policies and concluded that “the allegation of bullying and/or harassment by [Z.G.M.] [was] unfounded.”[7] (Defs.' 56.1 Stmt. ¶ 121; Pls.' 56.1 Resp. ¶ 121; Apr. 22, 2014 Letter, Smith Decl. Ex. DD, Docket Entry 67-32, at 1.) Plaintiffs allege that, throughout the investigation, Principal Henry did not update them or provide adequate information regarding the findings or progress of the investigation, and at some point, Milton contacted the assistant superintendent for information. (Pls.' 56.1 Counterstmt. ¶ 272; Milton 50-H Exam. 32:14-33:6.) While the District Defendants allege that the assault was reported in its Violent and Disruptive Incident Reporting Summary for the 2013-2014 school year, Plaintiffs contend that the result of the investigation was not reported to the State Department of Education. (Defs.' 56.1 Stmt. ¶ 122; Pls.' 56.1 Counterstmt. ¶ 154.)

         Regarding any prior relationship between the two students, Z.G.M. testified later that he did not know J.C. before encountering him that day, but also stated that J.C. called him “Afro-Man” and “Afro-Jack” about a week before the assault. (Z.G.M. 50-H Exam. 20:7-22:23.) He testified that he did not tell anyone at the school or his parents about that incident. (Z.G.M. 50-H Exam. 22:12-18.) Guzman and Milton testified that prior to the assault, they had never heard of J.C., that Z.G.M. had not mentioned having problems with J.C., and that Z.G.M. never indicated that he was taunted or assaulted by other students. (Defs.' 56.1 Stmt. ¶¶ 18-20, 22-24.) Additionally, Barbara Madigan (“Madigan”), Z.G.M.'s guidance counselor, was not aware of any problems between Z.G.M. and J.C. before the date of the assault. (Defs.' 56.1 Stmt. ¶ 175.) Madigan also testified that Z.G.M. never complained to her about being harassed because of his race and that she did not recall Guzman informing her or Principal Henry that Z.G.M. was being bullied.[8] (Defs.' 56.1 Stmt. ¶ 178; Madigan Dep. 55:24-3; Pls.' 56.1 Counterstmt. ¶ 35.) Milton testified that Z.G.M. never told him about any students making racial comments toward him, and Guzman and Milton both testified that they never told Principal Henry or other school personnel that they believed the assault was racially motivated.[9] (Defs.' 56.1 Stmt. ¶¶ 25, 125, 136; Guzman 50-H Exam. 50:8-13; Milton 50-H Exam. 52:20-23.) Guzman testified that prior to the assault, she never notified personnel at the School that she was concerned about Z.G.M.'s safety. (Guzman 50-H Exam. 49:24-50:4.)

         C. Z.G.M.'s Return to School

         On February 4, 2014, Z.G.M. returned to school, and Principal Henry met with Guzman, allegedly at Guzman's request. (Defs.' 56.1 Stmt. ¶ 113; Pls.' 56.1 Resp. ¶ 113.) It appears Madigan was also present at the meeting. (Defs.' 56.1 Stmt. ¶ 172; Pls.' 56.1 Counterstmt. ¶ 33.) Principal Henry relayed the information gathered from witnesses and J.C. about the assault, including that there was an allegation that Z.G.M. had flirted with J.C.'s girlfriend. (Defs.' 56.1 Stmt. ¶¶ 114-16; Pls.' 56.1 Counterstmt. ¶ 145.) Plaintiffs allege that Principal Henry also said that Z.G.M. should not have left the classroom to retrieve his book because he did not have a hall pass. (Pls.' 56.1 Counterstmt. ¶¶ 41-42.) Guzman provided Principal Henry with an Order of Protection, which stated that J.C. must stay away from Z.G.M. “wherever he/she may be [and] make no contact with [Z.G.M.] directly or indirectly, even if invited . . . except for incidental contact at South Valley Stream High School including any school functions . . . .” (Order of Protection, Smith Decl. Ex. CC, Docket Entry 67-31.) Guzman also requested an escort for Z.G.M.[10] (Pls.' 56.1 Counterstmt. ¶ 281; Guzman 50-H Exam. 38:24-39:10.) As a result, Principal Henry provided Z.G.M. with a pass allowing him to leave each class three minutes early, and another student helped him get to each class. (Defs.' 56.1 Stmt. ¶ 123; Pls.' 56.1 Resp. ¶ 123; Guzman 50-H Exam. 39:16-23.)

         Plaintiffs maintain that within two days of Z.G.M.'s return to school, two of J.C.'s friends threatened Z.G.M. (Pls.' 56.1 Resp. ¶ 119.) Z.G.M.'s teacher, Ellen Daniels (“Daniels”), overheard the incident and wrote a statement. (Defs.' 56.1 Stmt. ¶ 140.) Afterward, Z.G.M. went to see his guidance counselor, Madigan, who showed him photographs to help him identify the students, and reported what she learned to Principal Henry. (Defs.' 56.1 Stmt. ¶ 140; Z.G.M. 50-H Exam. 53:9-55:4; Disciplinary Referral, Smith Decl. Ex. FF, Docket Entry 67-34, at 3.) A Disciplinary Referral completed by Daniels indicates that one of the students said “There that kid [Z.G.M.] I'm going to kick his ass.” (Disciplinary Referral at 3.) Both students were suspended by Principal Henry.[11] (Defs.' 56.1 Stmt. ΒΆ 119; Z.G.M. ...

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