09-0866-cv
Rodriguez v. Clinton

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED A FTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN
ELECTRONIC DATABASE W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH
AS THE DATABASE AVAILABLE AT http://www.ca2.uscourts.gov/). IF NO COPY IS SERVED BY REASON
OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER O F THE CASE IN WHICH THE
ORDER W AS ENTERED.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 18th day of December, two thousand nine.

PRESENT:
            PIERRE N. LEVAL,
            PETER W. HALL,
            GERARD E. LYNCH,
                        Circuit Judges.
____________________________________________________________

EDGAR RODRIGUEZ,
                                      Plaintiff-Appellant,

                       v.                                           No. 09-0866-cv

BARBARA CLINTON, ELIZABETH DAVIES, NEW
PALTZ CENTRAL SCHOOL DISTRICT,
                              Defendants-Appellees.
____________________________________________________________

FOR PLAINTIFF-APPELLANT:                     MICHAEL H. SUSSMAN, Sussman & Watkins,
                                             Goshen, N.Y.
FOR DEFENDANTS-APPELLEES:                     JOHN F. MOORE, Ryan & Smallacombe, PLLC,
                                              Albany, N.Y.

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

(Scullin, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Edgar Rodriguez (“Appellant”) appeals from a judgment in favor of

Defendants-Appellees Barbara Clinton, Elizabeth Davies, and New Paltz Central School District

(collectively, “Appellees”). Appellant claims that the district court erred in granting summary

judgment for Appellees on Appellant’s claims of violations of the First and Fourteenth

Amendments to the United States Constitution. We assume the parties’ familiarity with the facts

and the record of prior proceedings, which we reference only as necessary to explain our

decision. This Court reviews a grant of summary judgment de novo, drawing all factual

inferences in favor of the nonmoving party. See Davis v. Blige, 505 F.3d 90, 97 (2d Cir. 2007),

cert. denied, 129 S.Ct. 117 (2008).

        1.       Removal from the Shared-Decision Making Team

        “It is axiomatic that the First and Fourteenth Amendments, and § 1983, apply only to

state actors.” Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996). The U.S. Supreme Court has

explained that, “[a]ction taken by private entities with the mere approval or acquiescence of the

State is not state action.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977,

986 (1999). It is undisputed that the New Paltz High School Parent Teacher Student Association

(PTSA) is a private entity. Appellant provides no evidence that the Appellees, who are state



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actors, did anything more than acquiesce in the PTSA Executive Board’s removal of Appellant

from the Shared-Decision Making Team. Because Appellant has failed to provide sufficient

evidence of “state action,” he has not created a genuine issue of material fact with respect to his

claim that his removal was actionable as retaliatory conduct under the First Amendment or

discriminatory conduct under the Fourteenth Amendment.

       2.      The CPS Report and Threatened Filing of the PINS Petition

       Appellant claims that an interim superintendent and assistant superintendent “directed”

the Child Study Team (“CST”) to report Appellant to Child Protective Services (“CPS”). The

record demonstrates that the CST made an independent determination to file the CPS report on

the grounds, inter alia, that Appellant’s child had not been attending school and would not

participate in tutoring or go to a residential placement, and that his parents would not hospitalize

him. Further, the evidence showed that the school district took action (by making a CPS report

and/or filing PINS petitions) with respect to other students in the school district who were having

attendance issues or failing to attend school at all and that, at least with respect to the PINS

petitions, the action was taken after those students had missed less time from school than did

Appellant’s child. A reasonable jury, therefore, could only conclude that Appellees would have

filed the CPS report or a PINS petition regardless of Appellant’s alleged political activity, and the

First Amendment retaliation claim cannot therefore be maintained on the basis that the CPS

Report was filed and PINS action was threatened. See Bd. of County Comm'rs v. Umbehr, 518

U.S. 668, 685, 116 S.Ct. 2342, 2352 (1996) (a First Amendment retaliation claim under section

1983 fails if the defendants establish as an affirmative defense that they would have taken the

allegedly retaliatory action regardless of the protected speech).


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       With respect to Appellant’s equal protection claim under the Fourteenth Amendment, he

must present evidence: “(1) that [he was] treated differently from other similarly situated

individuals, and (2) that such differential treatment was based on impermissible considerations

such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious

or bad faith intent to injure a person.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499

(2d Cir. 2001) (internal quotation marks omitted). In the alternative, he could pursue an “equal

protection claim under a theory of discriminatory application of the law, or under a theory of

discriminatory motivation underlying a facially neutral policy or statute.” Pyke v. Cuomo, 258

F.3d 107, 108-09 (2d Cir. 2001). Appellant, however, has failed to present sufficient evidence to

allow a reasonable jury to find that any of the Appellees intentionally discriminated against him

or that he was treated differently than similarly-situated Caucasians.

       3.      Conclusion

       For the foregoing reasons, the judgment of the United States District Court for the

Northern District of New York is AFFIRMED.



                                               FOR THE COURT:

                                               Catherine O’Hagan Wolfe, Clerk



                                               By:________________________




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