Citations
- 898 F. Supp. 2d 516
Full opinion text
ORDER
ROSLYNN R. MAUSKOPF, District Judge.
By motions filed April 13, 2011, the District Defendants and defendant Tom Kretsos moved for summary judgment of all plaintiffs’ claims. (Doc. Nos. 157, 158.) By Order entered October 25, 2011, this Court referred those motions to the assigned Magistrate Judge, the Honorable Arlene R. Lindsay, for a Report and Recommendation. On August 7, 2012, Judge Lindsay issued a Report and Recommendation (the “R & R”) recommending that this Court grant the motions for summary judgment on the federal claims, decline to exercise supplemental jurisdiction over any state claims, and dismiss those state claims without prejudice. (Doc. No. 167.) On August 22, 2012, plaintiffs filed objections. (Doc. No. 175.) On September 13, 2012, the District Defendants responded thereto (Doc. No. 177), and on September 18, 2012, defendant Kretsos responded thereto (Doc. No. 178). For the reasons set forth below, this Court finds plaintiffs’ objections to be without merit, and adopts the thorough and well-reasoned R & R in its entirety.
DISCUSSION
When reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party raises an objection to an R & R, “the court is required to conduct a de novo review of the contested sections.” See Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991). However, where an objection consists of “conclusory or general arguments” or is merely an “attempt to engage the district court in rehashing of the same arguments set forth in the original petition,” clear error review is appropriate. DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y.2009). Likewise, a district court is not required to review de novo, and may instead review for clear error, those portions of a report and recommendation to which no specific objections are addressed. See Id.
Notably, plaintiffs do not object to the majority of recommendations to dismiss plaintiffs’ causes of action, including dismissal of: the First Amendment Retaliation claim, the municipal liability claims, the conspiracy claims under 42 U.S.C. § 1985 and 1986, the Title VI claims, claims against defendant Dr. Bert Nelson based on quasi-judicial immunity, and the individual claims against defendants Cicero, Braceo, Cruz, Straub, Trocchio, and Treadwell. Although only required to conduct a review for clear error, this Court finds in its de novo review that these claims are dismissed for the reasons articulated in the R & R.
However, plaintiffs do object to the recommendations that their substantive due process, procedural due process, and equal protection claims be dismissed. In light of plaintiffs’ objections, this Court has reviewed these claims de novo.
Concerning their substantive due process claims, plaintiffs contend that the magistrate judge impermissibly made findings of fact, in favor of the defendants, concerning the extent of plaintiffs’ physical and psychological injuries, and the sequence of events related to defendant Kretsos’ alleged use of racial epithets and alleged punching of plaintiffs J.E. and C.E. Specifically, plaintiffs assert that their physical and psychological injuries were “substantial,” that “Defendant Kretsos yelled racist slurs at Plaintiffs prior to the altercation inside the school building and contemporaneously to punching both female Plaintiffs,” and that “at the time Defendant Kretsos punched both infant Plaintiffs [J.E.] and [C.E.] in the face, the altercation had ceased.” (Pis. Obj. at 5, 8.) Plaintiffs argue that because they allege substantial injury, it follows that defendant Kretsos must have applied force maliciously or sadistically to plaintiffs J.E. and C.E.; yet, plaintiffs do not cite any case law involving a Fourteenth Amendment substantive due process claim to support their theory. Also, plaintiffs contend that because they allege that defendant Kretsos shouted racial slurs prior to and during the second altercation on April 4, 2003, that it follows there is a genuine issue of material fact whether defendant Kretsos acted maliciously or sadistically. But as the magistrate judge noted, and this Court hold after de novo review, there is no evidence, other than the two racial slurs allegedly uttered by defendant Kretsos on April 4, 2003 in the context of two altercations involving multiple students, that defendant Kretsos was motivated by racial animus nor is there any evidence that defendant Kretsos applied force maliciously or sadistically to either J.E. or C.E. Moreover, while neither this Court nor the magistrate judge condones the use of racial slurs, plaintiffs’ claims do not rise to the level of a constitutional violation. See Yap v. Oceanside Union Free Sch. Dist., 303 F.Supp.2d 284, 297 (E.D.N.Y.2004) (holding that allegations of racist statements made by school staff to a student was insufficient to raise a substantive due process claim).
Plaintiffs further argue that there is a dispute concerning whether defendant Kretsos was trying to stop the fight when he was alleged to have punched plaintiff J.E. However, this is not a dispute of material fact. However, upon de novo review, the uncontroverted evidence demonstrates that defendant Kretsos attempted to stop the fight between J.E. and another student, and even physically interjected himself between the two fighting students. Whether defendant Kretsos punched plaintiff J.E. during the fight — as plaintiff S.E. testified — or immediately after the fight— as plaintiff C.E. testified — is immaterial. It was during the context of attempting to stop an altercation that defendant Kretsos allegedly punched J.E. and C.E. Even taking as true all of the facts exactly as described and characterized in plaintiffs’ opposition papers, plaintiffs’ substantive due process claims still do not rise to the level of a constitutional violation as a matter of law. See Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.2002) (holding that allegations of a teacher hitting a student for breaking an egg in class was insufficient to raise a substantive due process claim); Perrin v. Canandaigua City Sch. Dist., 08-cv-6135L, 2008 WL 5054241, at *4 (W.D.N.Y. Nov. 21, 2008) (holding that allegations of a gym teacher pulling a student’s arms behind his back, forcing the student through a door into the locker room, and punching and poking the student in the chest while berating him with use of foul, profane, and demeaning language was insufficient to raise a substantive due process claim).
Additionally, plaintiffs contend that the defendants violated plaintiff Victoria Edwards’ substantive due process rights by filing a PINS petition and making a report to Child Protective Services to have plaintiff C.E. returned to school. In support of their contention, plaintiffs argue that the magistrate judge incorrectly found that plaintiff Victoria Edwards’ safety concerns regarding the school environment were subjective. Plaintiffs also assert that the magistrate misstated and misapplied the law concerning the purpose of the PINS action and concerning a liberty interest on behalf of a parent to dictate the educational environment of a child of compulsory education age or a constitutional parental right not to be forced to place such child in a school environment that the parent perceives to be unsafe. However, plaintiffs have not provided, nor did the magistrate judge or this Court find, any case law to support such a claim.
Regarding their procedural due process claims, plaintiffs argue that the magistrate judge erroneously found that plaintiffs had the opportunity to confront witnesses during an administrative disciplinary hearing, and misstated and misapplied the law in considering the tutoring services and the denial of tutoring services. These objections are simply an attempt to rehash the same arguments that the magistrate considered and found deficient. Nonetheless, this Court goes beyond its obligation to review for clear error and finds, in its de novo review, that the process afforded to the infant plaintiffs related to their disciplinary hearings, the post-deprivation procedure related to the tutoring, and subsequent denial of tutoring satisfy the requirements of due process. Concerning the disciplinary proceedings, there is no genuine issue of material fact concerning the process afforded to the infant plaintiffs; they were provided (i) timely notice of the pending charges against them, (ii) a full opportunity to present their case at a formal disciplinary hearing prior to the decision to suspend each of them, and (iii) the ability to challenge that suspension on appeal. See DeFabio v. East Hampton Union Free Sch. Dist., 658 F.Supp.2d 461, 489-91 (E.D.N.Y.2009) (holding that due process was afforded where plaintiffs were given written notice of the charges against them, a full opportunity to present their case at a formal hearing prior to the decision to suspend, and provided procedures to challenge the decision). With respect to the adequacy of the tutoring and subsequent denial of tutoring services, it is undisputed that the state provided meaningful post-depravation remedies. Indeed, plaintiff Victoria Edwards challenged the adequacy of the tutoring with the New York State Department of Education; she received notice in writing that the home instruction for infant plaintiff C.E. would end upon the expiration of her suspension from school; and she had the opportunity to address her concerns with school district officials. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881-82 (2d Cir.1996) (holding that “there is no constitutional violation (and no available § 1983 action) when there is an adequate state post-deprivation procedure to remedy a random, arbitrary deprivation of property or liberty”).
Finally, plaintiffs argue that the magistrate incorrectly recommended dismissal of their equal protection claim because the magistrate judge ignored the plaintiffs’ experts’’ testimony and certain findings regarding selective enforcement. It is apparent that the magistrate did consider evidence of selective enforcement. See R & R at 37-43. Nevertheless, plaintiffs’ evidence of selective enforcement does not demonstrate that a similarly situated student of a different race or national origin who was involved in a fight, riot, or physical altercation with a security guard was more favorably treated than the infant plaintiffs. Thus, because no rational juror could find that plaintiffs have shown they were treated differently than other similarly situated individuals, plaintiffs claim fails as a matter of law. See Vassallo v. Lando, 591 F.Supp.2d 172, 184-85 (E.D.N.Y.2008) (granting summary judgment on equal protection claim where student-plaintiff failed to raise a genuine issue of material fact over whether student-plaintiff was treated differently than other similarly situated students).
CONCLUSION
Upon a de novo review of Judge Lindsay’s thorough and well-reasoned R & R, and the factual and procedural record upon which it is based, plaintiffs’ objections are overruled, and the R & R is adopted in its entirety. Accordingly, defendants’ motions for summary judgment on all federal claims are GRANTED. Further, this Court declines to exercise supplemental jurisdiction over plaintiffs’ state claims. The Clerk of the Court is directed to enter Judgment accordingly and to close the case.
SO ORDERED.
REPORT AND RECOMMENDATION
LINDSAY, United States Magistrate Judge:
Plaintiffs J.E., C.E., C.E. Jr., S.E. (referred collectively as the “infant plaintiffs” or the “Edwards children”) as infant plaintiffs by their mother and natural guardian, Victoria Edwards (‘Victoria” or the “infant plaintiffs’ mother”), and individually (collectively “plaintiffs”) bring this action pursuant to 42 U.S.C. Section 2000d et seq., 42 U.S.C. §§ 1983, 1985, 1986, the First, Fifth and Fourteenth Amendments to the United States Constitution and state law against defendants Center Moriches Union Free School District (“District”), Center Moriches High School (“High School”), Center Moriches Board of Education (“Board of Education”), Dr. Phillip Cicero (“Cicero”), in his individual and official capacity, Lino Braceo (“Braceo”), in his individual and official capacity, Michael Cruz (“Cruz”), in his individual and official capacity, Dr. Bert Nelson (“Nelson”), in his individual and official capacity, Bill Straub (“Straub”), in his individual and official capacity, Marc Trocchio (s/h/a Marc Trochhio) (hereinafter “Trocchio”), in his individual and official capacity, Veronica Treadwell (s/h/a Veronica Tredwell) (hereinafter “Treadwell”), in her individual and official capacity, (hereinafter all defendants except Tom Kretsos collectively the “District Defendants”) and defendant Tom Kretsos, in his individual and official capacity, (“defendant Kretsos”). The claims relate to events at Center Moriches High School on April 4, 2003, while the infant plaintiffs were students at the school, and the school officials’ decisions on that day, and in the time period that followed with respect to the infant plaintiffs. Before the court, on referral from District Judge Mauskopf, are the District Defendants’ and defendant Kretsos’ motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the undersigned recommends that the district court grant the (i) the motions for summary judgment on the federal claims; and (ii) decline to exercise supplemental jurisdiction over any state claims and dismiss those claims without prejudice.
BACKGROUND
The material facts, drawn from the Complaint and the parties’ Local 56.1 Statements, are construed in the light most favorable to the non-moving party, except as otherwise noted. See Iannuzzi v. American Mortg. Network, Inc., 727 F.Supp.2d 125, 130-31 (E.D.N.Y.2010); see also Capobianco v. City of New York, 422 F.3d 47, 54-55 (2d Cir.2005).
The Center Moriches Union Free School District (the “District”) is located in Suffolk County and administers the Center Moriches High School (the “High School”). (Dist. Defs. 56.1 Stmt. ¶¶ 1-2.) Plaintiffs are Native-American and African-American individuals, and they reside on, and are members of, the Unkechaug Indian Reservation. (Compl. ¶ 1.) During the school year of 2002-2003, the infant plaintiffs were enrolled in the District and attended the High School. (Dist. Defs. 56.1 Stmt. ¶ 16.)
I. Factual Background
a. The April 4, 2003 Altercation on School Grounds
On April 4, 2003, at the beginning of the tenth period of the school day, J.E. observed an argument between two students in the school lobby which continued outside the school. (Pis. 56.1 Stmt. ¶¶ 47, 51, 58-59, 63, 64, 66; Brewington Decl., Ex. L at 83-89.) Knowing that a fight was about to happen, J.E. exited the school building, along with a crowd of students, and a melee ensued. (Id.; Brewington Decl., Ex. J at 56-58.) A fist fight broke out which expanded to include at least five students, including J.E. and R.W., an African-American female student at the High School. (Brewington Decl., Exs. L at 86-88, 90-92, 97-103; J at 57-59, 61-62.) There were numerous fights occurring outside. (Pis. 56.1 Stmt. ¶ 121.) When J.E. saw R.W. yelling and screaming at her brother C.E. Jr., she took off her shoes, removed her jewelry, and ran over to defend her brother. (Pis. 56.1 Stmt. ¶¶ 72-73; Brewington Decl., Ex. L at 90-96, 102.) J.E. and R.W. exchanged verbal obscenities which led to a physical altercation between them. (Dist. Defs. 56.1 Stmt. ¶¶ 74, 77-80.) J.E. punched R.W. in the face, R.W. fell backwards and her cousin KC caught her. (Id. ¶¶ 77-81.) J.E.’s brothers C.E. Jr. and S.E. broke up the fight between the girls. (Pis. 56.1 Stmt. ¶ 84; Brewington Decl., Exs. J at 61-64; K at 61-66; O at 26-28.) When J.E.’s sister C.E. arrived at the scene, there was a crowd of students, a lot of movement and chaos outside. (Pis. 56.1 Stmt. ¶ 94.) J.E. had to be restrained by her brother S.E. who pushed her back towards the school building, and C.E. followed them. (Brewington Decl., Ex. L at 104-06.)
By this point security guards and other District staff were attempting to intervene. (Pis. 56.1 Stmt. ¶ 88; Dist. Defs. 56.1 Stmt. ¶ 88.) In trying to break up the fights outside, security guard Gregory Gates’ toe was broken. (Dist. Defs. 56.1 Stmt. ¶ 118.) Upon hearing about the melee, Assistant Principal Cruz ran outside where there were a number of students yelling and challenging each other. (Pis. 56.1 Stmt. ¶¶ 92-93; Dist. Defs. 56.1 Stmt. ¶¶ 92-93.) The administrators, including defendant Braceo, instructed the students to return to the school building. (Id. ¶¶ 117, 119.) As S.E. brought J.E. back to the school building, security guard Kretsos followed behind S.E., and according to J.E. was saying, “All you bunch of niggers are going to jail. All you bunch of niggers are getting locked up.” (Brewington Decl., Ex. L at 105.)
b. The Altercation Inside the School
Inside the school, there were many students waiting for the late bus in the lobby, as well as a crowd of students, teachers and guards in the hallway. (Pis. 56.1 Stmt. ¶¶ 121-22.) Once inside the crowded lobby the fight between R.W. and J.E. broke out again with them trading swings, tussling and grappling with each other. (Brewington Decl., Exs. I at 66-68; K at 68-69, 242-3; R at 33.) J.W., R.W.’s sister, joined the fracas which prompted J.E.’s sister C.E. to intervene. (Id., Exs. R at 33-34; I at 65-66.) Security guard defendant Kretsos attempted to break up the fight between R.W. and J.E. by wedging his body between the combatants. (Dist. Defs. 56.1 Stmt. ¶¶ 125-27; Brewington Decl., Exs. K at 66-68, 243-45; R at 33.) Kretsos unsuccessfully tried to separate the girls by pulling R.W. out of the altercation, but this did not stop the fight as the two students continued to battle. (Dist. Defs. 56.1 Stmt. ¶¶ 127-29; Brewington Decl., Exs. I at 68; K at 68-72, 247-48.) When Kretsos told J.E. that the police were called, J.E. demanded, ‘Why are you calling the police?” (Dist. Defs. 56.1 Stmt. ¶¶ 130-31.) The parties disagree about what transpired next.
According to defendants, J.E. then pushed Kretsos, C.E. hit him in the face and S.E. hit Kretsos in the back of the head as Kretsos put his arms up and tried to push S.E. and C.E. out of the way in an effort to defend himself. (Dist. Defs. 56.1 Stmt. ¶¶ 134-38,145; Stern Decl., Ex. Q at 21-22.) Plaintiffs deny that J.E. ever pushed Kretsos but assert that when Kretsos came in between J.E. and R.W. to break up the fight, he tried to pull R.W. out of the tussle, was unsuccessful, and punched J.E. once in the face. (Pis. 56.1 Stmt. ¶ 133; Brewington Decl., Ex. K at 68-72.) According to plaintiffs, when C.E. came towards Kretsos and protested, Kretsos also punched her once in the face, which prompted both C.E. and S.E. to punch Kretsos before he could be pulled away from the pile. (Pis. 56.1 Stmt. ¶¶ 134-38; Brewington Decl., Ex. K at 86-88.) Kretsos sustained injuries on the left and right side of his head. (Dist. Defs. 56.1 Stmt. ¶ 147.) Plaintiffs assert that Kretsos allegedly shouted racial epithets and threats towards the infant plaintiffs during the altercations both inside and outside the High School. (Pis. Ctr. Stmt. ¶¶ 54, 69, 77-80, 99-101; Compl. ¶¶ 30, 39.)
Principal Braceo intervened to control the situation. (Dist. Defs. 56.1 Stmt. ¶ 148.) Braceo got between the plaintiffs and Kretsos, and pushed Kretsos towards the bathroom. (Id. ¶ 149.) Braceo asked defendant Trocchio for his assistance in trying to control the situation. (Id. ¶ Braceo and Trocchio moved Kretsos into the girls’ bathroom, and Braceo tried to calm him down. (Id. ¶¶ 151, 154.) Trocchio stayed with Kretsos for a period of time in the girls’ bathroom. (Id. ¶ 155.) J.E. was escorted to Bracco’s office. (Id. ¶¶ 157-58.) By the time Braceo stepped out of the girls’ bathroom, the hallway was cleared, coinciding with the presence of the Suffolk County Police in the lobby of the school building. (Id. ¶¶ 162-63.) S.E., C.E. Jr., and C.E. joined J.E. and Braceo in Bracco’s office. (Id. ¶ 164.)
c. The Aftermath
Linda DeHoyos, a parent of a child in the High School, came into the Principal’s Office and offered to take the Edwards children home. (Id. ¶¶ 176-78.) Braceo allowed DeHoyos to take them and she escorted the Edwards children outside. (Id. ¶¶ 179-80.) The police approached C.E. Jr. to question him, but C.E. Jr. informed them that he would not to talk to them because he was a minor and his parents were not present, and he advised his brother S.E. not to answer the police’s questions for the same reason. (Id. ¶¶ 184-85.) C.E. Jr. and S.E. went home by bus, and J.E. and C.E. got into DeHoyos’ car. (Id. ¶ 188.) On their way home, J.E. and C.E. saw their cousin Robin Hughes driving towards the High School, and they asked DeHoyos to bring them back to the school. (Id. ¶ 189.) Once at school, they waited in Hughes’ van for their father, Curtis Edwards, Sr. to arrive at the school. (Id. ¶ 190.) When the infant plaintiffs arrived home, S.E. told his mother, Victoria Edwards, what had transpired and she brought her children back to the High School. (Id. ¶ 192.) At the school, Braceo, Cruz and Cicero were in the lobby. (Id. ¶ 193.) The parties, however, dispute whether or not J.E. and her parents accompanied Braceo into his office to discuss the incident. (Pis. 56.1 Stmt. ¶¶ 194-97; Dist. Defs. 56.1 Stmt. ¶¶ 194-97.) Once the Edwards family left the High School on April 4, 2003, they did not return that day. (Dist. Defs. 56.1 Stmt. ¶ 198.) J.E., C.E., C.E. Jr. and S.E. were each suspended for five days pending a superintendent’s hearing, and several of the other students involved in the altercation were suspended as well. (Id. ¶¶ 199-200.)
d. The Investigation into the Incident
Braceo conducted an investigation into the April 4, 2003 incident, questioning the security guards who were on duty and other staff members and securing written statements from a number of witnesses and participants. (Id. ¶¶ 205-07.) By Memorandum dated April 7, 2003, Braceo summarized the results of his investigation for Superintendent Cicero. (Id. ¶ 215.) Cicero suspended defendant Kretsos for thirty days without pay. (Id. ¶ 221.)
e. Disciplinary Charges
As a result of the April 4, 2003 incident, the District brought disciplinary charges against J.E., C.E., C.E. Jr. and S.E. (Id. ¶225.) In addition, the District brought twenty-eight counts of disciplinary chargers against R.W., and she was suspended for six months. (Id. ¶¶ 226-27.) S.A. and J.W. were also suspended for fighting in the April 4, 2003 incident. (Id. ¶¶ 228-29.) Mr. and Mrs. Edwards were notified of the charges by letter dated April 10, 2003. (Id. ¶ 230.)
f. The Disciplinary Hearings
The infant plaintiffs’ disciplinary hearings took place over the course of five days: April 14, 2003, April 30, 2003, May 5, 2003, May 7, 2003 and May 12, 2003, and at the plaintiffs’ request, the four disciplinary hearings were held simultaneously. (Id. ¶¶ 267, 273.) Plaintiffs were permitted to present witnesses and evidence during the hearing and were represented by counsel. (Id. ¶¶ 268-270.) The District retained defendant Dr. Bert Nelson as hearing officer for the matter. (Id. ¶ 274.) At the hearing, J.E., C.E., C.E. Jr. and S.E. testified before Dr. Nelson. (Id. ¶ 287.) In addition, defendants Braceo, Cruz, Trocchio, Treadwell as well as other school staff members, parents and students testified at the hearing. (Id. ¶ 288.) In making his decision, Dr. Nelson testified that he did not consider anything other than the testimony and exhibits that were presented during the hearing. (Id. ¶ 342.)
g.Dr. Nelson’s Decision
Following the hearings, Dr. Nelson issued a 40-page Hearing Officer Report (the “Report”) of his findings and recommendations dated May 18, 2003. (Id. ¶ 345.) Dr. Nelson found that on the afternoon of April 4, 2003, there was a riot at the High School and that the conduct of J.E., S.E. and C.E. on that day reflected their participation in inciting the riot that took place. (Id. ¶¶ 353, 359, 362.) With respect to J.E., the Report found that she engaged in a verbal and physical altercation with another student; was one of the people who had initiated the physical altercation; did not follow the appropriate directions of the staff; used inappropriate language during the events of April 4, 2003; and continued to engage in a verbal and physical altercation despite directives from District staff to stop. (Id. ¶¶ 348-54.) With respect to S.E., the Report found that he verbally threatened a security guard; used inappropriate language toward district staff; physically attacked a security guard; and did not follow the appropriate directions of school staff. (Id. ¶¶ 355-58.) Dr. Nelson found that although C.E. had a limited role in the events, she did attack a security guard. (Id. ¶ 360.) Dr. Nelson found that C.E. did not follow the directions of the Principal. (Id. ¶ 364.)
Dr. Nelson concluded that based on the evidence J.E. was guilty of 12 out 14 charges brought against her; S.E. was guilty of all 10 charges brought against him; C.E. was guilty of 4 of the 6 charges brought against her; and C.E. Jr. was guilty of 2 of the 14 charges brought against him. (Id. ¶¶ 367-70.) After Nelson rendered a decision as to the charges, he heard evidence with regard to the penalties to be assessed, including evidence of the infant plaintiffs’ prior disciplinary histories. (Id. ¶¶ 371, 374.)
h. Dr. Nelson’s Recommendations
In a Hearing Officer’s Report dated May 18, 2003, Dr. Nelson recommended that C.E. Jr. be suspended through June 30, 2003; C.E. be suspended through October 31, 2003; S.E. be suspended through June 30, 2004; and J.E. be suspended permanently. (Id. ¶¶ 495-500.) In recommending that J.E. be suspended permanently, Dr. Nelson noted, referring to this incident as well as past transgressions that:
[J.E.] is a student out of control. She has not and does not respond to the appropriate directions of staff. She is consistently insubordinate and she is an ongoing threat to the safety, morals, health and welfare of everyone in the school community. She does as she pleases when she pleases, and she has neither respect nor regard for school authorities.
[J.E.] is equally insubordinate to paraprofessionals, security guards, teachers, the Assistant Principal and the Principal. A student who cannot be expected to follow the rules and who chooses to ignore the instructions of school authorities is an imminent and continuing danger to all. No school should knowingly tolerant this consistent level of misconduct, nor should other students or adults be constantly at risk of the consequences of such intolerable misbehavior.
(Id. ¶ 501.)
In addition, Dr. Nelson recommended that during the suspension periods, the Edwards children not be permitted to enter the buildings or grounds of the District and alternate instruction and/or special services be provided for them. (Id. ¶¶ 502-03.)
Dr. Cicero adopted the recommendations of Dr. Nelson. (Id. ¶¶ 504-05.) Dr. Cicero considered the Edwards children’s prior disciplinary histories and adopted the disciplinary determinations made by Dr. Nelson for S.E., C.E. Jr., C.E. and J.E. (Id. ¶¶ 506-10.) The District informed plaintiffs of the Superintendent’s decision by letters dated May 27, 2003. (Id. ¶ 520.)
i. Home Tutoring
During the period of the their suspensions, the District provided the Edwards children with home tutoring services. (Id. ¶ 529.) During the summer of 2003, the infant plaintiffs received tutoring, and C.E. received home tutoring services throughout her suspension. (Id. ¶¶ 530-31.) In an appeal to the New York State Education Department, Victoria Edwards challenged the adequacy of the tutoring services provided to her children. (Id. ¶ 535.) The Commissioner of the New York State Education Department dismissed Victoria’s challenge in a decision dated November 19, 2003, finding that Victoria had failed to meet her burden of proving that the alternative instruction provided by the District was inadequate. (Id. ¶ 536.) In dismissing the appeal, the Commissioner noted that, “although petitioner initially rejected many of the scheduling options offered by the tutor, the hearing examiner facilitated an agreement between petitioner and respondent on a schedule for instruction.” (Id. ¶ 537.)
By letter dated November 14, 2003, Rosemarie Seitelman, Director of Special Services, informed plaintiffs that J.E. and S.E.’s tutor was unable to continue working with them (as she received a full time teaching position), and that beginning November 17, 2003, the District would provide J.E. and S.E. with new tutors in every subject. (Id. ¶¶ 544-45.) By letter dated June 24, 2004, Ms. Seitelman informed plaintiffs that J.E. and S.E. were eligible to receive tutoring services through the summer. (Id. ¶ 546.)
j. Person in Need of Supervision (“PINS”) Petition
On October 31, 2003, C.E.’s suspension expired and she was due to return to school on November 3, 2003. (Id. ¶¶ 548-49.) Victoria refused to allow C.E. to return to school, citing fear of mistreatment and retaliation, and requested continued home instruction for her daughter. (Id. ¶¶ 550-51.) By letter dated November 10, 2003, Laura A. Ferrugiari, counsel for the District, informed plaintiffs’ counsel that the District provides a safe learning environment and explained that unless C.E. could identify with specificity what or whom she feared, the District would have to deny the request for continued home instruction. (Id. ¶ 552.) Thereafter, in a second letter, dated November 18, 2003, Ms. Ferrugiari informed plaintiffs’ counsel that C.E. had not returned to school, that she was required to attend school regularly, and that if she “continues her pattern of nonattendance, the District will have no choice but to file a PINS petition with Family Court.” (Id. ¶¶ 553-54.) By letter dated November 20, 2003, Patricia Cunningham, Middle School Principal, informed plaintiffs, that since the expiration of her suspension, C.E. had accrued a total of twelve (12) unexcused absences. (Id. ¶ 555.) On January 21, 2004, when C.E. had not returned to school, the District filed a PINS Petition in Family Court of the State of New York, County of Suffolk. (Id. ¶ 557.)
II. Procedural History
In May 2003, Victoria Edwards filed a complaint with the United States Department of Education, Officer of Civil Rights (“OCR”), alleging that the District discriminated against plaintiffs in the way it handled the April 4, 2003 altercation at the High School, the subsequent discipline and the tutoring services. (Id. ¶ 560.) By letter dated July 17, 2003, OCR advised plaintiffs that it had rejected a number of plaintiffs’ allegations, but that it was proceeding with allegations regarding harassment on the basis of race and discrimination with respect to the imposition of discipline. (Id. ¶¶ 561; Stern Decl., Ex. MM.) By letter dated July 17, 2003 Victoria Edwards was advised that because there was no evidence to support their allegation, the OCR would not take further action regarding that allegation. (Stern Decl., Ex. MM.)
Plaintiffs did not appeal the disciplinary decisions to the District’s Board of Education, but instead appealed the disciplinary determinations to the New York State Education Department. (Dist. Defs. 56.1 Stmt. ¶¶ 521-22.) In a decision dated November 19, 2003, the Commissioner of the New York State Education Department dismissed the appeal. (Id. ¶ 523.) On November 20, 2003, plaintiffs entered into a Stipulation and Release with the District that provided J.E., S.E. and C.E. would attend school in the South Country Central School District at Bellport High School during the 2004-2005 school year and thereafter. (Id. ¶ 524.)
On June 7, 2005, plaintiffs commenced the instant action. The infant plaintiffs assert the following causes of action: (1) violations of equal protection pursuant to 42 U.S.C. § 1983 (“Section 1983”) as to defendants District, High School, Board of Education, Cicero, Braceo, Cruz, Trocchio, Kretsos and Straub; (2) violations of procedural due process and selective enforcement pursuant to Section 1983 as to defendants District, High School, Board of Education, Cicero, Braceo, Cruz, Trocchio and Nelson; (3) conspiracy to violate procedural and substantive due process pursuant to 42 U.S.C. § 1985 (“Section 1985”) as to defendants District, High School, Board of Education, Cicero, Braceo, Cruz, Trocchio, Kretsos and Straub; (4) violations of procedural and substantive due process, equal protection, the right to a safe school environment, a public school education and free from unlawful retaliation pursuant to 42 U.S.C. § 1986 as to defendants District, High School, Board of Education, Cicero, Braceo, Cruz, Trocchio, Treadwell, Nelson, Kretsos; (5) discrimination on the basis of race and national origin in violation of Section 1983 as to defendants District, High School and Board of Education; (6) discrimination on the basis of race and national origin in violation of Title IX as to defendants District, High School and Board of Education; (7) discrimination on the basis of race and national origin in violation of Title IX as to defendant Treadwell; (8) violations of equal protection pursuant to 42 U.S.C. § 1983 as against defendant Treadwell; (9) discrimination on the basis of race and national origin in violation of New York State Education Law Section 3201 (“Educ. Law § 3201”) as to defendants District, High School and Board of Education; (10) violations of the right to education and instruction pursuant to New York State Education Law Section 3204 (“Educ. Law § 3204”) as to defendants District, High School and Board of Education; (11) negligent supervision and training as to the defendants District and High School; and (12) negligence as to defendants District and High School.
Plaintiffs J.E. and C.E. assert the following causes of action: (1) assault and battery as to defendant Kretsos; and (2) vicarious liability for the battery cause of action as to defendants District and High School. Plaintiff Victoria Edwards asserts the following causes of action: (1) violations of equal protection and freedom.of expression pursuant to Section 1983 as to defendants District, High School, Board of Education, Cicero, Braceo, Cruz, Trocchio, and Kretsos; (2) conspiracy to violate procedural and substantive due process pursuant to 42 U.S.C. § 1985 (“Section 1985”) as to defendants District, High School, Board of Education, Cicero, Braceo, Cruz, Trocchio, Kretsos and Treadwell; (3) intentional infliction of emotional distress as to “defendants”; and (4) punitive damages against “defendants” on behalf of all plaintiffs.
The District Defendants and defendant Kretsos now move for summary judgment pursuant to Fed.R.Civ.P. 56.
DISCUSSION
I. Summary Judgment Standards
Summary judgment is proper only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue of fact is genuine if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ A fact is material if it ‘might affect the outcome of the suit under the governing law.’ ” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In determining whether an issue is genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)); see DeFabio v. East Hampton Union Free Sch. Dist., 623 F.3d 71, 74 (2d Cir.2010).
Once the moving party has met its burden, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R.Civ.P. 56(e)). The nonmoving party cannot survive summary judgment by casting mere “metaphysical doubt” upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Summary judgment is appropriate when the moving party can show that “little or no evidence may be found in support of the nonmoving party’s case.” Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223-24 (2d Cir.1994) (citations omitted). However, “the judge’s role in reviewing a motion for summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
II. Section 1983 Claims
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....
42 U.S.C. § 1983. In order to state a cause of action pursuant to Section 1983, plaintiffs must allege injury by either a state actor or a private party acting under color of state law. See Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002); see also Commodari v. Long Island Univ., 89 F.Supp.2d 353, 372 (E.D.N.Y.2000). A municipality and other local government units are “persons” subject to suit under Section 1983 for the deprivation of a constitutionally protected right. See Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Town of Orangetown v. Magee, 88 N.Y.2d 41, 48, 643 N.Y.S.2d 21, 665 N.E.2d 1061 (1996); see also Alex LL. v. Dept. of Soc. Servs., 60 A.D.3d 199, 872 N.Y.S.2d 569 (3rd Dep’t 2009). Because “Section 1983 is not itself a source of substantive rights but merely provides a method for vindicating federal rights elsewhere conferred ... [t]he first step in [analyzing] any claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal quotation marks and citations omitted); see Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993) (“Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere”). Plaintiffs assert constitutional violations of substantive due process of law, procedural due process of law, equal protection of law and free speech which the Court will address in turn.
A. Substantive Due Process
The Due Process Clause of the Fourteenth Amendment “provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures.” Desir v. Board of Co-op. Educ. Servs., No. 07-CV-1994 (RRM), 2008 WL 4508735, at *2 (E.D.N.Y. Sept. 30, 2008) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). The infant plaintiffs contend that defendants deprived them of their liberty interest in freedom from “unjustified intrusions on personal security,” see Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), on April 4, 2003 by failing to provide a safe environment for plaintiffs free from excessive force and/or verbal abuse. Specifically, plaintiffs assert that their substantive due process rights were violated when the District defendants allegedly (a) permitted Kretsos to punch J.E. and C.E., subjected the infant plaintiffs to racial slurs, and defendants failed to intervene to stop Kretsos; (b) failed to intervene in the students’ altercations; and (c) attempted to force C.E. back to attend school in an unsafe environment. In addition, plaintiff Victoria alleges her substantive rights were violated when the District defendants filed a PINS action and allegedly made false reports to Child Protective Services to force her daughter C.E. back to school. As set forth below, plaintiffs have failed to present evidence to create a genuine issue of material fact on their substantive due process claims; rather the undisputed facts demonstrates that the claims fail as a matter of law.
“Among the liberties protected by the Due Process Clause of the Fourteenth Amendment is a right to be free from ... unjustified intrusions on personal security.” Matican v. City of New York, 524 F.3d 151, 155 (2d Cir.2008). The Second Circuit has made clear, however, that “[o]nly an affirmative act can amount to a violation of substantive due process, because Due Process is phrased as a limitation of the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir.2007). “Moreover, state action resulting in bodily harm is not a substantive due process violation unless the state action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Chambers v. North Rockland Centr. Sch. Dist., 815 F.Supp.2d 753, 763 (S.D.N.Y.2011) (internal quotation marks and citations omitted); see County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (finding it established that “conduct that shock[s] the conscience and [i]s so brutal and offensive that it d[oes] not comport with traditional ideas of fair play and decency ... violate[s] substantive due process”) (internal quotation marks and citation omitted); see also Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168 (2d Cir.2002) (holding that the “protections of substantive due process are available only against egregious conduct which goes beyond merely offend[ing] some fastidious squeamishness or private sentimentalism and can fairly be viewed as so brutal and offensive to human dignity as to shock the conscience”) (internal quotation marks and citations omitted). The Supreme Court has emphasized that “[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
The threshold for establishing a constitutional tort in a school environment is high. At one end of the continuum, for example, the Second Circuit held in Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 252-55 (2d Cir.2001), that a gym teacher’s assault on a student constituted a violation of the student’s substantive due process right to be free from the use of excessive force. In Johnson, after an eighth grade student threw a dodge ball toward his gym teacher a distance of approximately twenty feet, the teacher grabbed the student by the throat, yelled “I’ll kick the shit out of you”, lifted him off the ground by his neck, dragged him across the gym floor, choked him, slammed his head into the bleachers four times, slammed his head into a metal fuse box and punched him in the face. Id. at 249. The Second Circuit stated that viewed objectively, the alleged assault was conscience shocking because it constituted malicious and sadistic conduct, was “extremely violent,” likely to produce substantial injury, and could not have served any government interest. Id. at 252.
By way of contrast, at the other end of the spectrum, the Second Circuit in Smith ruled that a technology teacher’s conduct did rise to the level of egregious conduct so as to constitute a violation of a student’s substantive due process rights. 298 F.3d at 173. In Smith, after a seventh grade student conducted an exercise which involved balancing an egg on the edge of his desk wherein the egg cracked through no fault of his own, the teacher struck the student in the face at full force with an open hand, causing him severe physical and emotional pain for which he underwent psychotherapy. Id. at 170. The Court held that under the relevant circumstances of the case, it was clear as a matter of law, that the teacher’s conduct, “though regrettable, simply [wa]s not of constitutional proportions.” Id. at 173. The conduct did not rise to conscience shocking behavior because although “[sjtriking a student without any pedagogical or disciplinary justification ... is undeniably wrong ... not all wrongs perpetrated by a government actor violate due process.” Id. Important to its holding was “the Supreme Court’s admonition that executive action challenges raise a particular need to preserve the constitutional proportions of claims, lest the Constitution be demoted to ... a font of tort law.” Id. at 173. The court noted that while there is no “per se rule that a single slap from a teacher or other school official can never be sufficiently brutal to shock the conscience and invoke the protections of the due process clause,” in that case the single slap fell short of the threshold for establishing a constitutional claim. Id.
Viewing the facts in the light most favorable to plaintiffs, the court is likewise constrained to conclude that Kretsos’ alleged conduct in this case does not rise to the level of “egregious conduct ... so brutal and offensive to human dignity as to shock the contemporary conscious” and constitute a constitutional violation. That is not to say that the undersigned condones such alleged conduct.
Construing the facts in plaintiffs’ favor, the incident giving rise to plaintiffs’ substantive due process claims occurred on April 4, 2003. The evidence shows that during the afternoon of that day there was a volatile situation at the High School. Students were involved in a melee which was clearly difficult to control. The plaintiff J.E., who was at the center of much of the trouble, was engaged in a physical brawl with another student R.W. and was difficult to restrain despite the efforts of her own brother and Kretsos. The brawl began first outside the school building, and then continued in the school lobby. (Stern Decl., Exs. I at 242-43; J at 33-34; K at 65, 68). There is no dispute that Kretsos was trying to stop the fight between J.E. and R.W. when he is alleged to have punched J.E. one time. The altercation between the two students had reached such a fever pitch that despite Kretsos physically interjecting himself between J.E. and R.W., they continued to flail at each other. (Id. at Ex. I at 68-69; Brewington Decl., Ex. K at 246-47.) To the extent Kretsos applied force against J.E. it was clearly out of frustration in his attempt to “break up the fight,” and did not constitute malicious and sadistic conduct. (Stern Decl., Ex. I at 69, 71-72.)
There is no indication that Kretsos applied force with the intent to injure J.E., but rather the evidence shows he was reacting to the situation and attempting to contain the fighting. In fact, C.E. acknowledged that Kretsos “was breaking up everything,” and S.E.’s testimony at his deposition confirms that he and Kretsos were attempting to separate J.E. and R.W., but Kretsos “was getting frustrated” because the brawl was escalating and he could not stop the fight. It was in this context, while Kretsos is actually lodged between R.W. and J.E. that he swung around and hit J.E. once in the face. By S.E.’s own account, as soon as J.E. was hit he was planning to physically retaliate against Kretsos when both he and C.E. “went towards” Kretsos. (Brewington Decl., Ex. K at 85-86.) As she approached, C.E. demanded to know why Kretsos hit her sister. It was at this point that Kretsos is claimed to have punched C.E. once. C.E. and S.E. then each followed through and punched Kretsos. (Id.) Kretsos thereafter was allegedly “out of control” and elicited racial epithets at the infant plaintiffs. Defendants Braceo and Trocchio intervened, restrained him and had him taken injured to the girl’s bathroom.
While Kretsos’ alleged use of force against J.E. and C.E. was undeniably wrong, in view of the riotous circumstances of this case and Kretsos’ attempts to intervene in the students’ altercation, Kretsos’ conduct falls short of the threshold for establishing a constitutional claim. The level of force used against J.E. and C.E. was not nearly as extreme or as violent as that used intentionally by the gym teacher in Johnson and is closer in the continuum to the unprovoked conduct in Smith. Although plaintiffs assert they suffered psychological and physical injuries, there is simply no evidence that Kretsos applied force maliciously or sadistically to either J.E. or C.E. Rather the evidence demonstrates that his aim was to contain a fight between students, which was spinning out of control and in danger of expanding to other students. In short, within the context of this incident, the wrong perpetrated by Kretsos fails to rise to a constitutional violation of the infant plaintiffs’ substantive due process.
In addition, plaintiffs’ have not established a cognizable substantive due process claim that defendants deprived them of their liberty interest in freedom from unjustified intrusions on personal security based upon the racial comments Kretsos allegedly made on April 4, 2003. There is no question that in a civilized society, it is reprehensible for anyone to utter a racial slur against another individual. That being said, the alleged racial slurs were made during the riotous incident which was perpetrated by the students and in which Kretsos had unsuccessfully attempted to contain, but had lost control. In the heat of the moment, individuals do make regrettable statements which in a perfect world should never be uttered. Given the attendant circumstances of this case, the statements made by Kretsos do not rise to the level required to support a constitutional violation of the infant plaintiffs’ substantive due process.
In turn, having concluded that Kretsos’ conduct does not support a substantive due process claim, plaintiffs’ claims regarding the defendants’ failure to intervene to stop Kretsos likewise fails to rise to constitutional proportions.
To the extent that plaintiffs claim the defendants violated their substantive due process rights by failing to protect them from other students, this claim fails. In general, the Due Process Clause “does not require that the states protect the life, liberty, and property of its citizens against invasion by private actors.” K.W. v. City of New York, 275 F.R.D. 393, 397 (E.D.N.Y.2011) (internal quotation marks and citations omitted); see DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (explaining the purpose of the Due Process Clause “was to protect the people from the State, not to ensure that the State protected them from each other”). “The Due Process Clause protects citizens from being deprived by the state of those rights, but it does not require the state to provide aid, even when it may be necessary.” Id. (internal quotation marks and citations omitted). “[SJchools have no duty under the Due Process Clause to protect students from assaults by other students, even where the school knew or should have known of the danger presented.” Patenaude v. Salmon River Cent. Sch. Dist., No. 03-CV-1016, 2005 WL 6152380, at *11 (N.D.N.Y. Feb. 16, 2005); see Scruggs v. Meriden Bd. of Educ., No. 03-Civ-2224, 2007 WL 2318851, at *12-13 (D.Conn. Aug. 10, 2007) (school officials’ alleged failure to remedy students bullying and harassment of plaintiff was insufficient to support substantive due process claim where there was no evidence that the officials encouraged or affirmatively permitted the harassment).
Plaintiffs’ claim that defendants violated C.E.’s substantive due process rights by “attempting to force her back to attend school” is unavailing because this claim is raised for the first time in plaintiffs’ opposition to defendants’ summary judgment motions. See Lyman v. CSX Transp., Inc., 364 Fed.Appx. 699, 701-02 (2d Cir.2010) (affirming the district court’s holding that it should not consider claims raised for the first time in plaintiffs opposition to summary judgment); Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir.2006); see also Casseus v. Verizon New York, Inc., 722 F.Supp.2d 326, 344 (E.D.N.Y.2010) (same); Brandon v. City of New York, 705 F.Supp.2d 261, 278 (S.D.N.Y.2010) (“It is black letter law that a party may not raise new claims for the first time in opposition to summary judgment”).
Finally, to the extent plaintiff Victoria claims that defendants violated her own substantive due process rights by filing a PINS petition and making a report to Child Protective Services to have C.E. returned to school this claim is meritless. Victoria Edwards’ entire basis for this cause of action is that defendants’ actions in filing the petition and report were an effort to circumvent her parental rights and make her force her daughter back to school in an unsafe environment. (Pis. Mem. of Law in Opp. to District Defs. Mtn. at 27.) There is no support in this Circuit, nor do plaintiffs provide the court with any support, for a liberty interest on behalf of a parent to dictate the educational environment of a child of compulsory education age or a constitutional parental right not to be forced to place such child in a school environment that the parent subjectively perceives to be unsafe. Thus, plaintiff Victoria is unable to assert a substantive due process violation on this basis.
Accordingly, the undersigned recommends that the District Defendants’ and defendant Kretsos’ motions for summary judgment on plaintiffs’ substantive due process claims be granted.
B. Procedural Due Process
The plaintiffs allege a violation of their rights under the Due Process clause of the Fourteenth Amendment. “The Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, only against deprivations without due process of law.” Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 464 (2d Cir.2006) (internal quotation marks and citation omitted). “To determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Id. at 465 (internal quotation marks and citation omitted). Thus, “[i]n order to assert a violation of procedural due process rights, a plaintiff must first identify a property right, second show that the [government] has deprived him of that right, and third show that the deprivation was effected without due process.” Rivera v. Town of Huntington Housing Auth., No. 12-CV-901 (DRH)(ARL), 2012 WL 1933767, at *4 (E.D.N.Y. May 29, 2012) (internal quotation marks and citations omitted) (alteration in original).
New York State’s Constitution and education laws provide “a right to a free public education for individuals under the age of twenty-one” which is protected by the Due Process Clause of the Fourteenth Amendment. Lopez v. Bay Shore Union Free School Dist., 668 F.Supp.2d 406, 419 (E.D.N.Y.2009) (citation omitted). Each of the infant plaintiffs were suspended from school, and their suspensions constitute a deprivation of their constitutionally protected right to a public education. See Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Thus, the court examines whether the infant plaintiffs were deprived of their right to a public education without due process. See id. at 574, 95 S.Ct. 729 (“The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.”).
1. Disciplinary Hearing
“Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Supreme Court has held that “[a]t the very minimum, ... students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.” Goss, 419 U.S. at 579, 95 S.Ct. 729. “As a general matter, due process of law at a school disciplinary hearing need not include all of the procedural protections provided in a criminal proceeding. Rather, the trier of fact in a school disciplinary setting need provide only minimal due process for mild penalties, but must provide more significant protections for severe penalties.” Lopez, 668 F.Supp.2d at 419 (internal quotation marks and citations omitted). Where, as here, long-term suspensions were at issue, greater process was required. Id.; see, e.g., Barnett v. Tipton County Bd. of Educ., 601 F.Supp.2d 980, 985 (W.D.Tenn.2009) (“A student’s right to procedural due process requires formal procedures for student disciplinary hearings involving expulsion or suspensions of more than ten days. School officials must tailor disciplinary hearing procedures to avoid ‘unfair or mistaken findings of misconduct and arbitrary exclusions from school.’ School board disciplinary hearings satisfy due process when the student is given the opportunity to refute and explain the allegations against him”) (quoting Goss, 419 U.S. at 581, 95 S.Ct. 729); accord DeFabio v. East Hampton Union Free Sch. Dist., 658 F.Supp.2d 461, 489 (E.D.N.Y.2009), aff'd 623 F.3d 71 (2d Cir.2010) (same).
The undisputed facts of the instant case demonstrate that the process afforded to each of the infant plaintiffs was sufficient to satisfy the constitutional requirements of due process. First, plaintiffs had timely notice of the disciplinary hearings against them. By letters dated April 10, 2003, the District notified the plaintiffs of the specific charges against them and advised them that the Superintendent’s Hearings were scheduled to commence on April 14, 2003. (Stern Decl., Ex. FF.) Moreover, the disciplinary hearings took place over the course of five days between April and May 2003, at plaintiffs’ request were held simultaneously, and at the hearing, plaintiffs had counsel who presented their version of the facts. (Id. at Exs. KK at 1; E.) Dr. Bert Nelson, an independent hearing officer with many years of experience in education including 16 years as a Superintendent of Schools, was retained to preside over the hearing. (Id. at Ex. N at 82-83; S at 12-14.) Plaintiffs counsel made opening statements and closing arguments, was permitted to present witnesses and evidence, and had an opportunity to and did in fact cross-examine witnesses during the hearing. (Id. at Ex. E; Pis. Counter 56.1 Stmt. ¶¶270, 272.) Each of the infant plaintiffs testified at the hearing, and Dr. Nelson heard sworn testimony from defendants Braceo, Cruz, Trocchio, Treadwell, security guards Greg Gates, Joseph Townsend, Middle School Principal Matthew LeStrange, School Nurse Robin Gross, Custodian Otis Payne, English Teacher Sherry Turano, Social Worker Eliana Ward, School Psychologist Anna Aiello, Robin Hughes, two high sc