16-3395
Dole v. Huntington Union Free Sch. Dist.

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of
New York, on the 1st day of November, two thousand seventeen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RAYMOND J. LOHIER, JR.,
         CHRISTOPHER F. DRONEY,
                     Circuit Judges.
________________________________________________

LOUISE DOLE, JOHN M. DOLE, individually and
on behalf of John P. Dole,

                     Plaintiffs-Appellants,
              v.                                               No. 16-3395-cv

HUNTINGTON UNION FREE SCHOOL
DISTRICT, BOARD OF EDUCATION OF THE
HUNTINGTON UNION FREE SCHOOL
DISTRICT,

                  Defendants-Appellees.
________________________________________________

FOR PLAINTIFFS-APPELLANTS:      Jonathan A. Tand, Jonathan A. Tand & Associates P.C.,
                                Garden City, NY.
FOR DEFENDANTS-APPELLEES:       Kelly Reape, Guercio & Guercio, LLP, Farmingdale, NY.


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          Appeal from the United States District Court for the Eastern District of New York

(Seybert, J.).

          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

          Plaintiffs Louise and John Dole appeal from the judgment of the United States District

Court for the Eastern District of New York (Seybert, J.) entered September 8, 2016, granting

summary judgment to defendants. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

          The Doles brought a First Amendment retaliation claim and a substantive due process

claim, both pursuant to 42 U.S.C. § 1983, based on a series of events involving their son, J.P.D.,

at his school. One day after Louise Dole complained to school officials about pervasive bullying

at J.P.D.’s school, school officials called Child Protective Services (“CPS”), an action that the

Doles allege was retaliation for remarks made by Louise Dole. The Doles further allege that their

substantive due process rights were violated by the school officials’ call to CPS and treatment of

J.P.D. during an investigation after J.P.D.’s comments led the teacher to suspect child abuse. The

district court granted summary judgment to the defendants on both claims, and the Doles now

appeal.

          “We review de novo a district court’s grant of summary judgment, ‘construing the

evidence in the light most favorable to the non-moving party and drawing all reasonable

inferences in its favor.’” Minda v. United States, 851 F.3d 231, 234 (2d Cir. 2017) (quoting SCR

Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). “Our task is ‘to determine

whether the district court properly concluded that there was no genuine dispute as to any material

fact, such that the moving party was entitled to judgment as a matter of law.’” Id. (quoting Myers



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v. Patterson, 819 F.3d 625, 632 (2d Cir. 2016)). “The inquiry performed is the threshold inquiry

of determining whether there is the need for a trial—whether, in other words, there are any

genuine factual issues that properly can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986).

       The district court properly granted summary judgment on both the First Amendment

retaliation and substantive due process claims. With respect to the First Amendment retaliation

claim, “school official[s],” including teachers, “are required to report [to CPS] . . . when they

have reasonable cause to suspect that a child coming before them in their professional . . .

capacity is an abused or mistreated child.” N.Y. Soc. Serv. Law § 413(1)(a). “The state’s interest

in encouraging teachers to protect students is so powerful that New York confers immunity from

civil and criminal liability whenever they report suspected abuse in good faith, and it exposes

them to criminal and civil liability whenever they willfully fail to do so.” Cox v. Warwick Valley

Cent. Sch. Dist., 654 F.3d 267, 273 (2d Cir. 2011). Under New York law, a “school official

acting in the scope of his or her employment is presumptively acting in good faith so long as the

person did not engage in willful misconduct or gross negligence.” Villarin v. Rabbi Haskel

Lookstein Sch., 942 N.Y.S.2d 67, 71– 72 (N.Y. App. Div. 2012); see also Escalera v. Favaro,

749 N.Y.S.2d 263, 264 (N.Y. App. Div. 2002) (“To rebut the presumption of good faith, a

plaintiff must demonstrate that a defendant was motivated by actual malice.”). If the school

officials who called CPS have “a sufficient basis to suspect potential abuse,” we owe “‘unusual

deference’” to their “decision[s] to report reasonably suspected abuse and neglect.” Oglesby v.

Eikszta, 499 F. App’x 57, 60 (2d Cir. 2012) (quoting Cox, 235 F.3d at 274).




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         Contrary to the Doles’ contention, there are no genuine disputes of material fact on this

issue. The parties concede that J.P.D. told his teacher and the school psychologist that his father

would break his toys and hit him with a back scratcher,1 and that his father had grabbed his

mother’s wrists. The parties further concede that J.P.D. was upset and fearful when talking to his

teacher and the school psychologist. Because these facts gave school officials “a sufficient basis

to suspect potential abuse,” Oglesby, 499 F. App’x at 60, and there is no “clear showing of

retaliatory or punitive intent,” Cox, 654 F.3d at 274, the call to CPS was not retaliatory and

defendants are entitled to summary judgment on that basis.

         With respect to the substantive due process claim, the Doles brought this action against

the school district and the board of education, not the schools officials who interrogated J.P.D.

and attempted to pull his pants down. A school district is a municipal entity, and as such, “cannot

be held liable pursuant to § 1983 solely because of the discriminatory actions of one of its

employees.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 128 (2d Cir.

2004) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). As a result, a school

“[d]istrict can . . . only be held liable if its ‘policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.’”

Id. (quoting Monell, 436 U.S. at 694). The Doles have not identified, either in the district court or

on appeal, any policy requiring or permitting school officials to strip search a student of the

opposite sex to find evidence of child abuse. Our independent review of the record demonstrates

that such actions would actually violate the school district’s policy. As a result, the Doles’




         1
          The Doles argue that John M. Dole did not actually hit J.P.D. with a back scratcher, but instead “tapped
him with a very small back scratcher.” App. 59 ¶ 166.1 (emphasis added). At his deposition, J.P.D. testified that he
“said, ‘They hit me,’ but [he] really meant to say ‘tap me.’” App. 711:4-5. Regardless of what John M. Dole did or
what J.P.D. meant, what J.P.D. actually said to his teacher was that his father hit him with a back scratcher.

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substantive due process claim against the school district and the school board fails as a matter of

law and the defendants are entitled to summary judgment.

       We have considered all of the Doles’ remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the order of the district court.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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