D.S. v. Rochester City Sch. Dist.

D.S., an infant, by and through her parentand natural guardian, C.S., and C.S.,individually, on her own behalf, Plaintiffs, v. ROCHESTER CITY SCHOOL DISTRICT, et al., Defendants.

6:19-CV-6528 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

November 30, 2020

DECISION AND ORDER

INTRODUCTION

Plaintiffs D.S. and C.S. (collectively "Plaintiffs") bring this action against defendants Rochester City School District ("RCSD"), the Board of Education of the RCSD, Barbara Dean-Williams, Karl Kristoff, Fatimat Reid, Sheelarani Webster, Charles Smith, Kim Garlock, Amy Martin, Nancy Resto, Shelly Boyd, Jessica Flanders, Elizabeth Caveny, Nicole McCoy, Megan Carlett, Valerie Tarragrossa,¹ Yolanda Wade, Idonia Owens, Erica Deming, and two John Doe Defendants (collectively "Defendants"), alleging violations of Title VI, Title IX, and 42 U.S.C. § 1983, First Amendmentretaliation, municipal liability for failure to train and supervise, negligent supervision, and equal protection. (Dkt. 1).

Pending before the Court is a motion to dismiss Plaintiffs' complaint filed by Defendants RCSD, the Board of Education of the RCSD, Barbara Dean-Williams, Karl Kristoff, Fatimat Reid, Sheelarani Webster, Charles Smith, Kim Garlock, Amy Martin, Nancy Resto, Shelly Boyd, Jessica Flanders, Elizabeth Caveny, Nicole McCoy, Megan Carlett, Yolanda Wade, Idonia Owens, and Erica Deming (collectively the "District Defendants"), pursuant to Rules 12(b)(2)-(6), 12(e), and 10(a) of the Federal Rules of Civil Procedure. (Dkt. 4). Also pending is a motion for judgment on the pleadings filed by Defendant Valerie Tarragrossa pursuant to Rule 12(c) of the Federal Rules (Dkt. 26), and Plaintiffs' cross-motion to amend their complaint (Dkt. 29). For the reasons set forth below, the District Defendants' motion is granted in part and denied in part, Defendant Valerie Tarragrossa's motion is granted, and Plaintiffs' cross-motion to amend is denied. As detailed below, none of Plaintiffs' claims plausibly allege a cause of action. However, because "the usual practice is to grant leave to amend the complaint" when a motion to dismiss is granted, Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990), with respect to those claims that are dismissed without prejudice, Plaintiffs are granted leave to file an amended complaint within 30 days of the date of and in accordance with this Decision and Order, if they can do so consistent with their obligations under Federal Rule of Civil Procedure 11.

FACTUAL BACKGROUND

The following facts are taken from the complaint (Dkt. 1), which is the operative pleading. As is required at this stage of the proceedings, the Court treats Plaintiffs' allegations as true.

Plaintiff D.S. is a child residing in the City of Rochester, New York, with her mother, Plaintiff C.S. (Id. at ¶ 4). Plaintiff D.S. and Plaintiff C.S. are white. (Id. at ¶ 4). Plaintiff D.S. attended School No. 58, a public school in the RCSD known as World of Inquiry, where the ratio of black and Hispanic children to white children is approximately seven to one. (Id.at ¶¶ 4, 6). The allegations in the complaint arise from incidents occurring at School No. 58.

Plaintiff D.S. began attending School No. 58 in the fall of 2016 for her third-grade school year. (Id. at ¶ 34). Before the 2016 election, Plaintiff D.S.'s teacher, Defendant Flanders, conducted a mock election and asked the children who they would vote for to be President of the United States. (Id. at ¶ 38). Plaintiff D.S. stated that she would vote for Donald Trump, whereas her other classmates supported Hillary Clinton's candidacy. (Id. at ¶ 39). As a result of Plaintiff D.S.'s mock vote, she was mistreated by her classmates. (Id. at ¶ 40). In a morning circle designed to discuss the students' feelings about the elections, Plaintiff D.S.'s classmates called her a racist and said that Plaintiff C.S. must be a racist too. (Id. at ¶ 42). Plaintiff D.S.'s mock vote for Donald Trump made her unpopular and resulted in her being mistreated by her teacher and harassed and bullied by certain black and Hispanic classmates. (Id. at ¶ 47). Defendant Flanders didnot allow Plaintiff D.S. to participate in activities that other students engaged in and unfairly punished Plaintiff D.S. (Id. at ¶¶ 48, 58, 60).

Following the mock presidential vote, Defendant Resto, the administrative assistant to the principal, told Plaintiff C.S. that Plaintiff C.S. could no longer enter the school through the back door, even though that door was routinely used by other parents as an entrance. (Id. at ¶ 52). When Plaintiff C.S. raised the issue of Plaintiff D.S.'s disparate treatment with Defendant Webster, the Principal of School No. 58, the only option Plaintiffs were given as a remedy was to move Plaintiff D.S. to a different third grade classroom, which they did. (Id. at ¶¶ 62, 66). But in the new third grade classroom, Plaintiff D.S. was harassed, physically assaulted, and bullied by a male Hispanic classmate on a regular basis. (Id. at ¶¶ 67, 68, 69).

In her fourth-grade year, Plaintiff D.S. continued to be harassed, physically assaulted, and bullied by the same Hispanic classmate. (Id. at ¶¶ 76, 78, 79). The school failed to address the harassment and bullying, despite Plaintiff D.S.'s complaints. For example, when Plaintiff D.S. reported an incident to a physical education teacher, Plaintiff D.S. was punished for the report and the classmate was not. (Id. at ¶ 80, 81). The classmate stomped on Plaintiff D.S.'s foot so hard that Plaintiff D.S. required a doctor to remove part of her toenail. (Id. at ¶ 97). Plaintiff D.S. asked several adults, including Defendants Caveny and McCoy, teachers at School No. 58; Defendant Resto, administrative assistant to Defendant Webster; and the school nurse to call Plaintiff C.S., but was not permitted to do so. (Id. at ¶ 93). The school staff failed to supervise theclassmate and Plaintiff D.S., which allowed him to continue to make physical contact with her. (Id. at ¶ 113). When that classmate's father was informed that Plaintiff C.S. had complained about his son to the school and had a Facebook page to communicate about what was happening at the school, the classmate's father threatened Plaintiff D.S. with physical harm in the school building, yet no one from the school contacted the police about the incident. (Id. at ¶¶ 120, 121).

In April of her fourth-grade school year, Plaintiff D.S. was removed from class by the school psychologist, Defendant Deming, without parental knowledge, who engaged in a fishing expedition about Plaintiff D.S.'s home life. (Id. at ¶ 85). Plaintiff D.S. mentioned that her brother had a BB gun and a referral was made to Monroe County Child Protective Services. (Id. at ¶ 87). This referral resulted in a visit to their home, which was determined to be unfounded. (Id. at ¶¶ 85-88). The unfounded referral by RCSD was intended to serve as retaliation against Plaintiff C.S. for her complaints regarding discrimination against Plaintiff D.S. at the school and the school's failure to keep Plaintiff D.S. safe from bullying and harassment. (Id. at ¶ 89).

In April of 2018, Plaintiff C.S. informed Defendant Owens, the Chief of School Equity, and School No. 58 staff that Plaintiff D.S. was being taken to a doctor to assess the physical and psychological effects from her experience in school. (Id. at ¶¶ 28, 99). On June 19, 2018, Plaintiff C.S. paid an independent education specialist to conduct an assessment of Plaintiff D.S. and the specialist determined that Plaintiff D.S. met the criteria for Other Health Impairment, Learning Disability, and Emotional Disturbance,resulting from the bullying, harassment, and abuse she experienced in school. (Id. at ¶¶ 154, 156. 157). RCSD disagreed with the educational assessment and refused to provide special education services for Plaintiff D.S. (Id. at ¶¶ 159, 160). Plaintiff C.S. was forced to hire an attorney and file for mediation, which ultimately resulted in the imposition of a proposed Section 504 plan for Plaintiff D.S. (Id. at ¶ 161).

In fifth grade, Plaintiff D.S. continued to experience harassment and bullying by her classmates. (Id. at ¶¶ 162, 163). An African-American female classmate pulled Plaintiff D.S.'s hair and then falsely reported that D.S. had used the "n" word. (Id. at ¶¶ 163, 167). The school credited the classmate's fabrication and Plaintiff D.S. was forced to endure a "Peace Circle" to discuss her use of that word. (Id. at ¶ 169). In the Peace Circle, Defendant Tarragrossa, an employee of the Center for Youth on contract to the RCSD, and Defendants Martin and Carlett, teachers at School No. 58, accused Plaintiff D.S. of being racist based on her alleged use of the "n" word. (Id. at ¶ 171). In the Peace Circle, Defendant Tarragrossa stated, "someone here has been racist, and we want to talk about that" which reinforced that Plaintiff D.S. was a racist and was a form of harassment. (Id. at ¶ 173).

On September 24, 2018, a meeting was held about the hair pulling incident at which Plaintiff C.S. learned that parents of Plaintiff D.S.'s classmates were informed that Plaintiff D.S. had made a racially charged statement. (Id. at ¶¶ 174, 176). This further increased the perception that Plaintiffs were racists. (Id. at ¶ 177). At a meeting the following day with Defendant Smith, the Assistant Principal at School No. 58; DefendantWebster; Defendant Boyd, the Parent Liaison at the school; parents of five classmates, and two parent engagement representatives, Plaintiff C.S. was again accused of being racist and raising racist children. (Id. at ¶ 182). Each of the parents at the meeting said that they wanted Plaintiff D.S. removed from school. (Id. at ¶ 185).

Incidents of harassment and bullying continued in September and October of that school year. (Id. at ¶¶ 187-196). Plaintiff C.S. met with Defendant Smith and requested him to fill out a report pursuant to New York's Dignity for All Students Act ("DASA") on those incidents...