DS v. Rochester City Sch. Dist.

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DS, AN INFANT, BY AND THROUGH HER PARENT AND NATURAL GUARDIAN CS, AND CS, INDIVIDUALLY, ON HER OWN BEHALF, Plaintiffs, v. ROCHESTER CITY SCHOOL DISTRICT, BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT, et al., Defendants.

No. 19-CV-6528-EAW-MJP

United States District Court, W.D. New York

May 10, 2023

REPORT AND RECOMMENDATION AND DECISION AND ORDER

MARK W. PEDERSEN, UNITED STATES MAGISTRATE JUDGE

Presently before the Court is a motion by Plaintiff DS, an infant, by and through her parent and natural guardian CS, and Plaintiff CS, individually, on her own behalf (“Plaintiffs”), for leave to amend the complaint and add other parties as individual capacity defendants pursuant to Rule 15(a) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P”) and Local Rule of Civil Procedure (“Loc. R. Civ. P.”) 15. (Not. of Mot., Dec. 2, 2022, ECF No. 93.) The proposed amended complaint adds further allegations regarding Plaintiffs* claims of deliberate indifference to race-based bullying and First Amendment retaliation that allegedly occurred after the return of in-person instruction at Rochester City School #58. (Id.) For the reason stated below, the undersigned recommends that the District Court dismiss Plaintiffs* § 1983 claims against individual defendants in their official capacity; dismiss the Equal Protection claim asserted against Kwame Donko-Hanson and dismiss the claim for Due Process against Kwame Donko-Hanson.

The Court further grants Plaintiffs leave to amend their complaint with respect to the remaining claims and additional Defendants. Finally, the undersigned directs Plaintiffs to effect personal service in accordance with Fed.R.Civ.P. 4 for each of the newly-added Defendants.

FACTUAL BACKGROUND

The undersigned takes the following facts from the proposed second amended complaint. (Pls.' Proposed Am. Compl.. ECF No. 93-3.) The Court has recounted the factual background of this case in detail numerous times, and familiarity with it is assumed for purposes of this Report and Recommendation and Decision and Order. Nonetheless, the Court will briefly review the key facts below and include relevant factual additions from the proposed amended complaint.

Third Grade

At the age of eight. DS began attending the third grade at School #58 in the Fall of 2016. (Id. ¶ 38.) Rochester City School District (“RSCD”) responded to a FOIL request that showed the ratio of “black” and “Hispanic” students to white students in DS's third, fourth, and fifth grade classes was approximately seven to one. (Id. ¶ 41.) This made DS a minority student at School #58. (Id.) Sometime before the 2016 presidential election, DS's third grade teacher, Ms. Jessica Flanders, conducted a mock election with her students to see for whom they would vote. (Id. ¶ 43.) DS participated in the mock election and voted for Donald Trump while her "black” and “Hispanic” classmates voted for Hilary Clinton. (Id. ¶ 44.) After Donald Trump was elected President, Ms. Flanders orchestrated a “morning circle” so the students could discuss their feelings about the election. (Id. ¶ 45.) At this time, DS's classmates became aware that DS had voted for Donald Trump and proceeded to allegedly call her a racist and her mom, CS, a racist. (Id. ¶ 47.) DS began to cry because of the accusations and complained to Ms. Flanders, but Ms. Flanders did nothing to stop the name calling. (Id. ¶¶ 51-52.)

As a result of the mock election, DS alleges that she became a target and was mistreated by her teacher as well as her “black” and “Hispanic” classmates. (Id. ¶ 57.) DS alleges that she was regularly called a racist, along with several other offensive names and was denied participation in classroom activities. (Id. ¶¶ 58-60.) Ms. Flanders disciplined DS, which resulted in her “black” and “Hispanic” classmates laughing at her. (Id. ¶ 68.) CS attempted to discuss the disparate treatment incidents involving her daughter with Principal Sheela Webster, but Principal Webster refused to discuss the issues and did not require Ms. Flanders to meet with CS. (Id. ¶¶ 83, 84.)

DS eventually moved to a different third grade classroom. (Id. ¶ 88.) DS began to be harassed and bullied in her new class primarily by a student, JL. (Id.) Principal Webster continued to fail to effectively stop the harassment. (Id. ¶ 97.) By the end of the third grade, it is alleged that there had been 19 acts of harassment and bullying directed at DS by her “black” and “Hispanic” classmates. (Id. ¶ 100.) Fourth Grade

The bullying and discrimination continued into fourth grade. (Id. ¶ 104.) DS and JL were still in the same class, and JL continued the physical and verbal abuse by repeatedly pushing and kicking DS and directing inappropriate phrases at her. (Id. ¶¶ 105, 108, 112.) As a result of the continued bullying, DS became more and more isolated and her performance in school declined, as well as her ability to remember simple tasks. (Id. ¶ 116.) On April 27, 2018, more than a year from when CS advised School #58 of JL's aggressive bullying of DS, CS received an email from Idonia Owens, Chief of Schools for Equity, outlining a safety plan for DS that stated she could call her mom whenever she felt like she was in distress. (Id. ¶ 140.) On May 16, 2018, after the safety plan had been established, JL kicked DS in the right ankle twice. (Id. ¶ 153.) Principal Webster was among a list of staff members who precluded DS from calling her mother, nor did she report the incident to CS. (Id. ¶¶ 154, 156.)

On June 19, 2018, Plaintiffs hired Dr. Daniel J. DeMarie to conduct an evaluation on DS to determine whether the bullying she was suffering caused her to not progress in school as expected for a healthy child. (Id. ¶ 213.) Dr. DeMarie determined that DS's disabilities resulted in part because of the bullying, harassment, and physical abuse that DS was experiencing at school. (Id. ¶ 216.) However, after conducting its own testing of DS, RCSD determined DS was not in need of special education services and allegedly refused to provide her with them. (Id. ¶¶ 217-18.) School #58 eventually made an accommodation plan (“Section 504 Plan”) pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). (Id. ¶ 220.) The Section 504 Plan allowed DS to go to a “safe place” (such as the Nurse's Office or a Safe Zone) or call her mom. (Id. ¶ 223.) However, it is alleged that the right to go to a safe place or call her mom was often denied by the staff at School #58 based on DS's skin color. (Id. ¶ 224.)

Fifth Grade

DS continued to be verbally and physically harassed by her fifth grade classmates because of her race. (Id. ¶¶ 225-26.) On September 25, 2018, CS attended a meeting at School #58 with the parents of DS's “black” and “Hispanic” classmates and Principal Webster, Vice Principal Charles Smith, and Parent Liaison Shelly Boyd. (Id. 255-56.) During the meeting, CS was accused of being a racist and raising a racist family. (Id. ¶ 259.) On October 9, 2018 a “black” classmate threatened to whip DS to death, and on the following day, another “black” classmate found a hammer and told DS that he was “going to murder [her] with [it]." (Id. ¶¶ 276, 279.) CS attempted to file a Dignity for All Students Act (“DASA^[1]”) report relating to incidents that occurred on September 21, 24, and 25, but, to the best of OS's knowledge, no DASA report was made. (Id. ¶¶ 286-87.) On November 8, 2018, CS wrote an email to the school's DASA coordinator, Mr. Smith,^[2] informing him that in 44 days of school there had allegedly been 20 incidents of bullying, harassment, and intimidation towards DS. (Id.299.)

After November 8, 2018, the bullying and harassment persisted. DS alleged that her classmate “S” attacked her in the bathroom stall. (Id. ¶¶ 314-15.) As a result of the bathroom incident, DS was given in school suspension without the mandated notice and explanation of DS's violation of the RCSD Code of Conduct. (Id.^c 316.) A few days after the bathroom incident, DS was participating in a Black Lives Matter assignment and coloring a women's face black. (Id. ¶ 319.) DS's teacher, Amy Martin, allegedly called DS a racist in front of other children because of the way DS was coloring the picture. (Id. ¶ 321.) DS told Valerie Torregrossa^[3] about Ms. Martin calling her a racist but nothing came of it and several staff members refused to write a DASA report - Assistant Principal Kwame Donko-Hanson being one of them.^[4] (Id. ¶ 326.) On September 24, 2017. Principal Webster directed the word "racist” towards DS and said that a hair pulling incident with another student, S, was because of DS's racism. (Id. ¶ 347.)

Sixth Grade

School #58 went to remote learning due to the Covid-19 Pandemic on or about March 16, 2020. (Id. ¶ 371.) Before that, School #58's new Principal, T'Hani Pantoja, and new Assistant Principal, Adrienne Steflik, were successful at subduing the racebased bullying of DS by her “black” and “brown” classmates. (Id. ¶ 370.)

Eighth Grade^[5]

In September 2021, School #58 returned to in-person learning and there was a ^[6] new Principal, Kwame Donko-Hanson, a new Vice Principal, Nyree Wims-Hall, and a new Parent Liaison, Renee Joyner, who were all “black.” (Id. ¶¶ 374-75.) Plaintiffs claim the race-based bullying of DS resumed in eighth grade. (Id. ¶ 377.) On September 23, 2021, CS met with Vice Principal Wims-Hall to discuss recent attacks made on DS to try and stop the race-based bullying, and Vice Principal Wims-Hall agreed that the attacks were related to past bullying of DS. (Id. ¶ 381.)

On October 28, 2021, GX. a “dark-skinned” classmate took DS's backpack and brought it into the next room where DS's Chrome book was broken. (Id. ¶ 386.) Vice Principal Wims-Hall did not discipline GX, blamed DS for the incident, and...