N.U. v. E. Islip Union Free Sch. Dist.

N.U., Infant, by his Mother and Natural Guardian,NUBAISHA AMAR, and NUBAISHA AMAR, individually, Plaintiffs, v. EAST ISLIP UNION FREE SCHOOL DISTRICT, a/k/a EAST ISLIP SCHOOL DISTRICT, EAST ISLIP MIDDLE SCHOOL,JOHN V. DOLAN, MARK BERNARD, and JASON STANTON, Defendants.

16-cv-4540 (SJF) (ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 30, 2020

MEMORANDUM & ORDER

FEUERSTEIN, District Judge:

Plaintiffs N.U. ("N.U." or "infant-plaintiff") by his mother, Nubaisha Amar ("Amar"), who also appears individually (collectively, "Plaintiffs"), commenced this action against Defendants alleging, inter alia, violations of their rights under Fourth and Fourteenth Amendments to the United States Constitution. Currently before the Court is a motion for summary judgment by the remaining defendants,¹ Mark Bernard ("Bernard") and Jason Stanton ("Stanton") (collectively "Defendants") pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Motion, Docket Entry ("DE") [65]. Plaintiffs have opposed the motions. For the reasons set forth herein, the motion is granted.

I. BACKGROUND

A. Factual History²

At the time of the incidents underlying this litigation, N.U. was a twelve year-old boy attending the seventh grade at East Islip Middle School, and Bernard and Stanton were the Principal and an Assistant Principal, respectively, at the school.

i. Cafeteria Incident and Preliminary Investigation

On January 6, 2016, N.U. told other students in the school cafeteria that he was a terrorist and was going to blow up the school fence. Plaintiffs do not contest that he made the statement, but argue that whether N.U. "knew the meaning of the word 'terrorist' is matter of significant dispute" given his learning disabilities including, inter alia, language, vocabulary and communication impairment. Pls. 56.1 Cntr-Stmt ¶22. They further claim that prior to making this statement, N.U. had been subjected to severe bullying by a group of older students who "continuously called him a 'terrorist' and repeatedly asked him what he would blow up next." Id.

Two students testified to hearing N.U. make statements in the cafeteria regarding bombs at the school. See, e.g., Silverman Decl., Ex O, Deposition of A.A. ("A.A. Dep.") at 14 (N.U. said "don't come to school tomorrow" and that he was going to blow up the school after school); id., Ex N, Deposition of C.A. ("C.A. Dep.") at 24 (N.U. "was saying how he's part of ISIS andmaking jokes about having bombs and stuff. And we were telling him that's not funny that's not something you should joke about, that's something you can get in trouble about. And I remember him saying he's not joking"). C.A. testified that he heard N.U. using the word "terrorist," see C.A. Dep. at 11 (N.U. was "saying stuff about him being a terrorist and stuff about bombs"), while A.A did not. A.A. Dep. at 18.

As to the bullying N.U. claims to have experienced prior to making the statements, he testified that two unidentified eighth grade boys peppered him with questions including "'What do you have going on in your mind. You're a terrorist, what's on your mind, what is going on, what are you going to blow up next.'" Silverman Decl., Ex. D, 6/7/16 50-h Deposition of N.U. ("N.U. 50-h") at 21, 24. He "got annoyed," and said "Yes, I'm a terrorist, I'm going to go to school, I'm here to go to school and I'm going to blow up the school fence." Id. at 25. N.U. returned to his seat, did not tell his friends about the exchange, and said that his friends did not hear it. Id. at 25-26. During a subsequent deposition, N.U. testified that three, not two, students came up to him while he was sitting by himself and told him he was a terrorist, but they had never done that before. Silverman Decl., Ex. E, 4/25/18 Deposition of N.U. ("N.U. Dep.") at 16-17. C.A. never witnessed students bullying or teasing N.U. or calling him a terrorist. C.A. Dep. at 15, 25. A.A. did not witness any bullying, harassing, or teasing of N.U. in the cafeteria that day, A.A. Dep. at 18, nor did N.U. ever confide in him about other students bullying him. Id. at 25. A.A. did hear someone in the cafeteria call N.U. a terrorist, just once, on the day of the incident, see id. at 19, but the comment was made after N.U. had "started saying about all this stuff that he was going to do." Id. at 19-20.

The parties agree that the original incident took place on January 6, 2016, and there does not appear to be a real dispute that the investigation conducted by Bernard and Stanton tookplace on the following day, January 7, 2016. The evidence is unclear, however, as to when Bernard and Stanton were made aware of the incident. On the day of the incident, C.A. stated that he and another student, L.F., went to a lunch room aide, not a teacher, where L.F. "said the whole stuff." C.A. Dep. at 14. A.A. did not report it to anyone. Bernard was apprised of the incident by a teacher, Judith Fischer, and Bernard advised Stanton. Fischer told Bernard that students had reported to her that another student made a threat to blow up the school, and that the students indicated that they were nervous and anxious. Silverman Decl., Ex. H, Deposition of Mark Bernard ("Bernard Dep.") at 17. Fischer's written statement says that the events took place on January 7, 2016;³ Bernard testified that he learned about incident on the afternoon of January 7, 2016, and that all the interviews took place on January 7^th, Bernard Dep. at 17; A.A. thought he was interviewed the day of the incident, but could not be completely sure; and Stanton started his testimony saying the interviews were conducted on January 6^th and later became uncertain and thought it was the next day. There is no dispute that N.U. was interviewed on January 7, 2016. Plaintiffs suggest that the date is in "significant dispute" because "[i]f Defendants learned of the alleged 'threat' on January 6, 2016 and waited until the following day to question N.U., that would certainly undermine any perceived danger of legitimate 'threat.'" Pls. 56.1 Cntr-Stmt. ¶23.

Defendants Bernard and Stanton conducted five (5) student interviews⁴ pertaining to the cafeteria incident, including and culminating with their interview with N.U. Two of the students interviewed, L.F. and C.A., had expressed concerns to Fischer. L.F. was interviewed first, but it was determined that he did not have firsthand information.

C.A. was interviewed next. At the conclusion of the interview, C.A. prepared the following written statement:

He was saying he's a terrorist and when I asked if it was true he said yes. He then said he was going to blow up the school. So I told him that's not something to joke about and he said he wasn't joking. He proce[ed]ed to say that he already has the bombs and he was deciding when to set them off and it would probably [be] at night. He then yelled something in a language I couldn't understand and then he said he's going to be part of Isis. After when I asked what did he yell, he said it was in Muslim. I then tried to stay away from him and I ignored him.

Silvernan Decl. Ex. K, C.A. Written Statement. C.A. testified at his deposition that the written statements was accurate, that the statement was in his own words and handwriting, signed by him, and that no one forced or threatened him or told him what to write. See C.A. Dep. at 26-28.

Another student, M.A., was then interviewed.⁵ M.A. expressed surprise and shock, and denied making any comments about being a terrorist or blowing up the school. Bernard Dep. at 21-22. M.A. indicated to Bernard that he may have overheard talk on the subjects in the hallway or other areas of the school. Id. at 23-24. M.A.'s belongings were not searched. He offered that A.A. might have information.

A.A. was brought in, indicated that N.U. had made the statements in the cafeteria the previous day and that he, A.A., had heard them. Bernard Dep. at 25. A.A. prepared the following statement after his interview:

I walked into lunch in period 7. I was sitting on the table and [N] comes by sits down gets his lunch and eats, after a while he starts talking about how he was going to blow up the school and when he was gonna blow it up. He says tomorrow Thursday afternoon when everyone leaves the school "I am going to come and explode this school until everyone in this school dies and I don't care if I get into trouble." After telling him not to say that he said "I don't care I can say what I want." After a while 10 minutes later he keeps reapeting [sic] it. Me and [C] start getting scared about it.

Silvernan Decl. Ex. L, A.A. Written Statement. A.A. also testified at his deposition that his written statement was accurate, in his own words and handwriting, signed by him, and that no one forced or threatened him or told him what to write. See A.A. Dep. at 34-36.

ii. N.U.'s Contacts with Defendants

After completing the interview of A.A., Stanton removed N.U. from his class at the end of the last period of the school day and brought him to the building's administrative offices. There is some discrepancy regarding the sequence of events after N.U. arrived at the office; it is undisputed, however, that there were periods of time during which (1) both Bernard and Stanton questioned N.U. in Stanton's office; (2) Stanton and N.U. went into an adjacent conference where, with the door open, (a) a search of N.U.'s belongings was conducted, and (b) N.U. prepared at least one written statement; and (3) N.U. was told by Stanton to do his homework in the conference room. Testimony from Bernard and Stanton, and from N.U. in June 2016, correspond to this sequence of events. In his subsequent deposition, however, N.U. indicated that his prior testimony as to the sequence was inaccurate and that Stanton conducted the search and secured N.U.'s written statement before the questioning by Bernard and Stanton.

a. Questioning of N.U.

Once in Stanton's office, Stanton sat at the desk, N.U. in a chair, and Bernard in the other chair, and...