Reid ex rel. Roz B. v. Freeport Pub. Sch. Dist.

89 F.Supp.3d 450

Naudia REID, o/b/o ROZ B., an infant, Plaintiff

v.FREEPORT PUBLIC SCHOOL DISTRICT, Kishore Kuncham, Superintendent, New Visions Magnet School, Renee Crump–Dedmon, Principal, Jane Doe, a New Visions Teacher, Individually and in official capacity, and three students in the care and custody of the Freeport Public School District, full names unknown, Defendants.

No. 14–cv–4215 ADSGRB.

United States District Court, E.D. New York.

Signed March 2, 2015.

Ray, Mitev & Associates, by John W. Ray, Esq., Vesselin V. Mitev, Esq., of Counsel, Miller Place, NY, for the Plaintiff.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis, by Laura A. Endrizzi, Esq., of Counsel, Uniondale, NY, for the Defendants Freeport Public School District; Kishore Kuncham, Superintendent; New Visions Magnet School; and Renee Crump–Dedmon, Principal.

NO APPEARANCES: The Defendants Jane Doe, a New Visions teacher, Individual and in Official Capacity and three students in the care and custody of the Freeport Public School District, full names unknown.

DECISION AND ORDER

SPATT, District Judge.

On June 28, 2014, the Plaintiff Naudia Reid, on behalf of Roz B., an infant (the “Plaintiff”) commenced this action in Supreme Court of the State of New York, County of Nassau against the Defendants Freeport Public School District, Kishore Kuncham (“Kuncham”), Superintendent, New Visions Magnet School, Renee Crump–Dedmon (“Crump–Dedmon”), Principal, Jane Doe, A New Visions Teacher, Individually and in their Official Capacities, and three students in the care and custody of the Freeport Public School District, full names unknown (collectively the “Defendants”).

The Plaintiff alleges that her daughter, then a first grade student, was sexually assaulted by three fellow female students while in a classroom of the New Visions Magnet School, a school within the Freeport Public School District. The Plaintiff also alleges that the classroom teacher observed the acts and yet did nothing to intervene.

The Court interprets the Plaintiff to be asserting, on behalf of her daughter, a violation of her daughter's Fourth and Fourteenth Amendment rights under the United States Constitution; the tort of negligent supervision or retention under New York law; and a violation of her daughter's rights to be secure in her person under Article 1, § 12 of the New York State Constitution. The Plaintiff seeks compensatory damages, punitive damages, attorneys' fees, costs, and disbursements.

On July 9, 2014, the Defendants Freeport School District, Kuncham, New Visions Magnet School, and Crump–Dedmon (the “Freeport Defendants”) removed this action to this Court pursuant to the provisions of 28 U.S.C. § 1446(a).

On July 30, 2014, the Freeport Defendants moved pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6) to dismiss the complaint as against them.

For the following reasons, the Court grants the Freeport Defendants' motion.

I. BACKGROUND

Unless stated otherwise, the following factual allegations are drawn from the complaint and construed in a light most favorable to the non-moving party, the Plaintiff.

A. The Parties

At all relevant times, Roz B. was an infant residing in Nassau County, New York. Roz B. is a pseudonym used to “protect her from unwarranted public exposure and humiliation given the nature of the allegations herein, and the fact that [she] is an infant.” (Compl., at ¶ 5.) The true name of Roz B. is known to the Defendants.

At all relevant times, the Plaintiff, a person over 18 years of age and residing in Nassau County, New York, was the mother and natural guardian of Roz B. and, as noted above, now brings this action on Roz B.'s behalf.

The Defendant Freeport Public School District is a public school district organized under and by virtue of the laws of New York State, with schools and offices in Nassau County, New York at 235 North Ocean Avenue, Freeport, New York, 11520.

The New Visions Magnet School is an elementary school within the Freeport School District, located in Nassau County, New York at 80 Raynor Street, Freeport, New York, 11520.

At all relevant times, Kuncham was the Superintendent of the Defendant Freeport Public School District. She resides in Nassau County, New York.

Crump–Dedmon was at all relevant times the Principal of the Defendant New Visions Magnet School. She resides in Nassau County, New York.

Jane Doe was at all relevant times a teacher for the Defendant New Visions Magnet School. Jane Doe allegedly resides in Nassau County, New York.

The three infant defendants were at all relevant times students at the Defendant New Visions Magnet School in Jane Doe's first-grade classroom.

B. The Underlying Incident

On April 2, 2013, Roz B. and the three infant Defendants were unsupervised in the first-grade classroom of Jane Doe in the Defendant New Visions Magnet School, on the grounds and premises of the Defendant Freeport Public School District.

The Plaintiff alleges, upon information and belief, that the Freeport Public School District and its agents and employees, including but not limited to Kuncham, Crump–Dedmon, and Jane Doe knew or should have known that Roz B. and the three infant Defendants, all then six years old, were left unsupervised in this way.

According to the Plaintiff, “[u]pon information and belief, it was the practice or policy of Defendant Freeport Public School District to regularly abandon, neglect, set aside and/or ignore[ ] its own established policy and procedures regarding security and supervision procedures as to all students.” (Id. at ¶ 24.)

The Plaintiff also alleges that the that Freeport Public School District and its agents and employees, including but not limited to Kuncham, Crump–Dedmon, and Jane Doe had a duty to provide adequate supervision and to use reasonable care to all students under their care and control which they breached when they failed to supervise Roz B. and the three infant Defendants.

However, that day, on April 2, 2013, Roz B. was allegedly cornered by the three infant Defendants near the “cubby” area of the classroom. The three infant Defendants allegedly held Roz B. down and restrained her against her will and forced her to remove her tights, skirt, and underwear and/or forcibly removed these items. The three infant Defendants then took turns “performing various unsolicited, unlawful, unwanted sexually assaultive and abusive acts upon infant Roz B., including but not limited to touching, feeling, and groping her genital area; licking and kissing her genital area, groin[,] and buttocks.” (Id. at ¶ 33.)

During this alleged sexual assault, Jane Doe apparently appeared in the classroom, observed the assault, yet did not nothing to intervene or in any way stop or abate the acts of abuse being perpetrated upon Roz B. Rather, Jane Joe allegedly exited the classroom.

The Plaintiff asserts that Freeport Public School District and its agents and employees, including but not limited to Kuncham, Crump–Dedmon, and Jane Doe breached an “existing special duty of care” owed to Roz B. by failing to provide adequate supervision; failed to stop the assault being committed upon her when Jane Doe discovered the assault; and generally failed to timely and thoroughly investigate the assault. The Plaintiff maintains that as a direct and proximate result of this breach of duty, Roz B. was sexually assaulted by her fellow students.

By reason of the foregoing, Roz B. allegedly suffered physical harm, severe emotional harm including but not limited to post-traumatic stress disorder, sex abuse victim trauma syndrome, extreme anguish, loath of schooling, loss of education opportunity, and damage to her reputation.

II. DISCUSSION

A. Service on the Non–Freeport Defendants

“If a defendant is not served within 120 days after the complaint is filed, the court ... must dismiss the action without prejudice or order that service be made within a specified time,” unless “the plaintiff shows good cause for the failure.” Fed.R.Civ.P. 4(m).

A plaintiff is also required to file proof of such service, see Hiller v. Farmington Police Dep't, No. 3:12–CV–1139–(CSH), 2014 WL 992790, at *2 (D.Conn. Mar. 13, 2014). The district courts in this circuit have generally interpreted Rule 4(m) to require plaintiffs to do so within the aforementioned 120–day period. Id.; Funches v. Connecticut Dep't of Pub. Health, No. 308–CV–1714 (RNC), 2010 WL 122445, at *1 (D.Conn. Jan. 7, 2010) (“Plaintiff failed to submit proof of service of process within 120 days of filing the complaint, as required by Fed.R.Civ.P. 4(m).”); Nieves v. Gonzalez, No. 05–CV–00017S (SR), 2006 WL 758615, at *7 (W.D.N.Y. Mar. 2, 2006) (same), although concededly the provision does not expressly require that action. The Court follows this interpretation of Rule 4(m) because to hold otherwise—that is, to hold that failure to file proof of service within the 120–day period does not mandate dismissal of the action—would eviscerate the remedial provisions of Rule 4(m).

In cases that have been removed from state court, “Rule 4(m)'s 120–day period for service begins to run on the date of removal.” United Merch. Wholesale, Inc. v. IFFCO, Inc., 51 F.Supp.3d 249, 259 (E.D.N.Y.2014) (quoting G.G.G. Pizza, Inc. v. Domino's Pizza, Inc., 67 F.Supp.2d 99, 102 (E.D.N.Y.1999) (citations and internal quotation marks omitted)); The Lee Family v. Int'l Paper Co., No. 1:09–CV–280 (GM), 2010 WL 2949635, at *2 (D.Vt. July 23, 2010) (“In the case of a removed action, if service was not performed prior to removal, a plaintiff receives a windfall of 120 days after removal in which to serve process.”).

As stated above, the Freeport Defendants removed this action on July 9, 2014. More than 120 days have since elapsed without the Plaintiff filing proof of service of the summons and complaint on the Non–Freeport Defendants, namely Jane Doe and the three infant defendants. Because Plaintiff has failed to file proof of service on these Defendants within the 120–day window or show “good cause” for the delay, Rule 4(m...