United States District Court, E.D. New York
CHRISTOPHER MILTON, and WENDY GUZMAN, individually and as parents and legal guardians of Plaintiff, Z.G.M., Plaintiffs,
VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT, VALLEY STREAM SOUTH HIGH SCHOOL, MAUREEN HENRY, JACQUELINE ALLEN, MICHAEL MAHLER, BARBARA MADIGAN, “JOHN DOE” GERAMINA, CAROLINE BORMANN, J.C., a minor, “JOHN DOE” CANNON and “JANE DOE” CANNON, individually and as parents and legal guardians of minor J.C., and JANE and JOHN DOES 1-10, Defendants.
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.
Plaintiffs: Frederick K. Brewington, Esq, Matin Emouna, Esq.
J.C., a minor, “John Doe” Cannon and “Jane
MEMORANDUM & ORDER
SEYBERT, UNITED STATES DISTRICT JUDGE
Milton and Wendy Guzman, individually and as parents and
legal guardians of minor Z.G.M. (“Plaintiffs”)
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.
A. The Assault
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.)
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. ¶¶
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.)
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. (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. (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.)
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.” (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.)
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.)
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.)
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.)
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. (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.)
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. (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.” (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.)
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. (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. (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.
Z.G.M.'s Return to School
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. (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.)
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. (Defs.' 56.1 Stmt. ¶ 119;