Potrzeba v. Sherburne-Earlville High Sch.

1

EDWARD POTRZEBA III, KAYLEIGH ROOD, MARTIN FURNER, and JOSIE PARKER, Plaintiffs, v. SHERBURNE-EARLVILLE HIGH SCHOOL through the Sherburne-Earlville Central School District Board of Education, KENNETH BUEHNER, in his individual and official capacity, NICHOLAS COLOSI, in his individual and official capacity, BRAD PERRY, in his individual and official capacity, ROBERT BERSON, in his individual and official capacity, DOE DEFENDANTS 1-20, in their individual and official capacity, Defendants.

No. 3:23-cv-191 (BKS/ML)

United States District Court, N.D. New York

December 21, 2023

For Plaintiffs:

Keith Altman

The Law Office of Keith Altman

For Defendants:

Frank W. Miller

Giancarlo Facciponte

Hancock Estabrook, LLP

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, Chief United States District Judge

I. INTRODUCTION

Plaintiffs Edward Potrzeba III, Kayleigh Rood, Martin Furner, and Josie Parker bring this action under 42 U.S.C. § 1983 and New York State law alleging (1) retaliation in violation of their First Amendment rights; (2) violation of due process under the Fourteenth Amendment; and (3) negligent infliction of emotional distress. (Dkt. No. 1.) Plaintiffs name as Defendants Sherburne-Earlville High School through the Sherburne-Earlville Central School District Board of Education, and the following school employees in their individual and official capacities: Kenneth Buehner, Nicholas Colosi, Brad Perry, Robert Berson, and twenty Doe Defendants. (Id. at 1.) The named Defendants answered the complaint, (Dkt. No. 9), and have moved to dismiss the complaint under Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. No. 14.) The motion is fully briefed. (Dkt. Nos. 19, 20.) For the reasons that follow, the Court grants the motion in part.

II. FACTS^[1]

Defendant Sherburne-Earlville High School is a public high school located in Sherburne, New York, and operated by the Sherburne-Earlville Central School Board of Education. (Dkt. No. 1, ¶ 11.) Defendants Buehner, Colosi, Perry, and Berson were employed by Sherburne-Earlville High School at all times relevant to this action.^[2] (Id. ¶¶ 12-15.) Plaintiffs were students at Sherburne-Earlville High School at all times relevant to this action. (Id. ¶ 17.)

A. Plaintiffs Potrzeba, Rood, and Furner

During the morning of Friday, November 19, 2021, Plaintiffs Potrzeba, Rood, and Furner met with Defendants Buehner and Berson “regarding issues within Defendant Sherburne-Earlville High School including the mistreatment by the principal.” (Id. ¶ 18.) Defendants Buehner and Berson “canceled the meeting,” “kicked Plaintiffs out of the main office and denied rescheduling the meeting.” (Id. ¶ 19.) The same day, at approximately 11:45 a.m., Plaintiffs Potrzeba, Rood, and Furner “participated in a peaceful protest of Sherburne[-Earlville High School] students against mistreatment by the High School's principal.” (Id. ¶ 20.) The protest consisted of “a quiet ‘walkout' which did not interfere with the school's operation.”^[3] (Id. ¶ 21.) Plaintiffs Potrzeba, Rood, and Furner participated in the protest with the consent of their parents. (Id. ¶ 22.)

The Sherburne-Earlville Central School District's Code of Conduct “sets out that ‘leaving school grounds during regular school hours' is not a violation of the school's rules if done [with] the permission of a parent.” (Id. ¶ 30.) The Code of Conduct also provides that “every student is entitled to being informed of the misconduct they are alleged to have committed, as well as being given an opportunity to present their version of facts about the alleged misconduct.” (Id. ¶ 31.) Plaintiffs Potrzeba, Rood, and Furner “were not awarded these procedures.” (Id. ¶ 32.)

On Monday, November 22, 2021, Plaintiffs Potrzeba, Rood, and Furner “were called into the main office by . . . the high school secretary[] via loudspeaker with other students who had participated in the protest.” (Id. ¶ 23.) In the main office, “Defendant Buehner informed the students that they would receive a day of In-School Suspension (‘ISS') for ‘what happened last week'” and were expected to immediately report for ISS. (Id. ¶¶ 24, 26.) “The students were not informed of the actual charges brought against them and were left to assume that this was done in retaliation for their protest.” (Id. ¶ 25.) “Other Sherburne students participated in the walk-out with no discipline and repercussions.” (Id. ¶ 47.) Plaintiff Potrzeba “feared that his constitutional rights would be violated if he remained at school for questioning and therefore left the school's premises.” (Id. ¶ 27.)

On November 26, 2021, Plaintiff Potrzeba's parents were informed of the ISS via a notice that described the alleged offenses as “cutting class, disruption of the school environment, and leaving school grounds without permission” but which did not include the duration of the ISS. (Id. ¶¶ 28-29.) Plaintiff Potrzeba “was not given the opportunity to have an informal conference with the principal and complaining witness, nor was he afforded the right to an appeal to the superintendent and an appeal to the school board.” (Id. ¶ 33.) “Because of this, [Plaintiff Potrzeba]'s parents informed Sherburne[-Earlville High School] that they would pull Plaintiff [Potrzeba] from the school for a day as to not serve ISS until the right to an appeal would be granted.” (Id. ¶ 34.) “Defendant Colosi subsequently threatened [Plaintiff Potrzeba], stating that for every day that he did not attend ISS, he would receive an additional day of ISS.” (Id. ¶ 35.)

Plaintiff Rood's parents “attended an informal conference with Defendant Perry in which he continuously told them he could not speak for Defendant Colosi, who was not present.” (Id. ¶ 36.) Plaintiff Rood's parents “had requested and were denied a meeting with Defendant Buehner, who had written the referral for sanction.” (Id. ¶ 37.) On or around December 13, 2021, Plaintiff Furner's parents “were denied their request to have Defendant Buehner present during their meeting with Defendant Perry.” (Id. ¶ 38.)

Plaintiffs Potrzeba, Rood, and Furner “continued to refuse to attend ISS without [being] given the right to appeal” and “were threatened with additional ISS as a consequence for seeking an appeal.” (Id. ¶ 39-40.) On or around January 24, 2022, Plaintiff Rood “stated that she wanted to appeal the decision of ISS and was told that she was wasting her time by Sherburne[-Earlville High School] staff.” (Id. ¶ 41.) Plaintiff Furner also “provided to Sherburne [Earlville High School] staff that he wanted to appeal the decision of ISS and was met with the same advisement; he was wasting his time.” (Id. ¶ 42.) “Defendant Colosi informed [Plaintiff Potrzeba]'s parents that they would not be granted an informal conference because now the ‘time expired.'” (Id. ¶ 43.) “Only after [Plaintiff Potrzeba]'s parents involved the school's General Counsel, Defendant Colosi retracted his threats and granted [Plaintiff Potrzeba] an appeal process.” (Id. ¶ 44.) On February 28, 2022, a hearing regarding the appeal to the Board of Education took place. (Id. ¶ 45.) The Board of Education denied Plaintiffs Potrzeba, Rood, and Furner's appeals. (Id. ¶ 46.)

B. Plaintiff Parker

The allegations involving Plaintiff Parker arise from circumstances entirely separate from the circumstances of Plaintiffs Potrzeba, Rood, and Furner. On April 23, 2022, Plaintiff Parker “was issued a 5-day(s) suspension for a tobacco violation.” (Id. ¶ 49.) “Defendant's policy states ‘Any weapons, alcohol, or illegal substances found shall be confiscated immediately followed by notification of the parent of the students involved and the appropriate disciplinary action taken, up to and including permanent suspension and referral for prosecution.'” (Id. ¶ 50.) Plaintiff Parker “was never found to be in possession of the alleged vape, as such no confiscation occurred.” (Id. ¶ 51.)

During the morning of Monday, April 25, 2022, Plaintiff Parker “reported to school and was asked to leave by the School Resource Officer.” (Id. ¶ 52.) “An informal meeting was hel[d] between Defendant Colosi and [Plaintiff] Parker's parents” and, that same day, “an appeal regarding Josie's suspension was made.” (Id. ¶ 54.) “[T]he district held [Plaintiff Parker]'s suspension in abeyance pending the conclusion of the appeal.” (Id.)

On April 26, 2022, Plaintiff Parker “was notified that an additional suspension from athletic contests would be put in place and would remove [Plaintiff Parker] from four consecutive games beginning April 25, 2022.” (Id. ¶ 55.) Plaintiff Parker “would be allowed to attend all practices with the team once her out of school suspension was served” but “participation in [] regular practices w[ould] be at the coaches' discretion.” (Id. ¶ 56.) Plaintiff Parker appealed to the “Athletic Board of Review.” (Id. ¶ 57.) Plaintiff Parker, “a scholar athlete,” was forced to miss multiple games her senior year.” (Id. ¶ 58.)

III. STANDARD OF REVIEW

Under Rule 12(c) of the Federal Rules of Civil Procedure, any party may request judgment on the pleadings “after the pleadings are closed-but early enough not to delay trial.” The standard for granting a Rule 12(c) motion to dismiss for failure to state a claim “is identical to that for granting a Rule 12(b)(6) motion for failure to state a claim.” See Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021) (quoting Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020)). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly,...