     16-1000
     Jones v. Bay Shore, et. al.

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of December, two thousand sixteen.
 5
 6       PRESENT: RALPH K. WINTER, JR.,
 7                DENNIS JACOBS,
 8                JOSÉ A. CABRANES,
 9                              Circuit Judges,
10
11       - - - - - - - - - - - - - - - - - - - -X
12       CHARLES W. JONES,
13                Plaintiff-Appellee,
14
15                    -v.-                                               16-1000
16
17       BAY SHORE UNION FREE SCHOOL DISTRICT,
18       PETER J. DION, Individually and as
19       Superintendent of the Bay Shore Union
20       Free School District, EVELYN BLOISE
21       HOLMAN, Individually and as the
22       former Superintendent of the Bay
23       Shore Union Free School District
24                Defendant-Appellants
25
26       ROBERT PASHKEN, Individually and as
27       Principal of Bay Shore High School
28                Defendant
29
30       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1   FOR APPELLANT:              CHRISTOPHER MURRAY, Ruskin
 2                               Moscou Faltischek, P.C.,
 3                               Uniondale, New York.
 4
 5   FOR APPELLEE:               STEVEN C. STERN, Sokoloff Stern
 6                               LLP, Carle Place, New York
 7                               (Kaitlyn R. McKenna, on the
 8                               brief).
 9
10       Appeal from judgments of the United States District

11   Court for the Eastern District of New York (Seybert, J.).

12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgments of the district court be

14   AFFIRMED.

15       Charles Jones appeals from judgments of the United

16   States District Court for the Eastern District of New York

17   (Seybert, J.) dismissing his due process and equal

18   protection claims on a motion to dismiss and granting

19   summary judgment for defendants on his First Amendment

20   retaliation claim.   We assume the parties’ familiarity with

21   the underlying facts, the procedural history, and the issues

22   presented for review.   We affirm because: 1) there was no

23   evidence that any action taken against Jones was due to his

24   speech; 2) Jones did not properly plead a selective

25   enforcement claim; and 3) any deprivation of a property

26   interest or a liberty interest was de minimis and

27   insufficient to make out a due process violation.




                                   2
 1       Jones coached the girls’ junior varsity softball team

 2   at Bay Shore High School in the early 1980s.    In 1985, the

 3   Bay Shore Union Free School District (the “school district”)

 4   came into possession of evidence strongly suggesting that

 5   Jones had repeatedly sexually assaulted four minor students

 6   on his softball team.   The school district charged Jones

 7   with sexual misconduct.   In the ensuing settlement, he

 8   resigned while denying any wrongdoing.

 9       In 1998, Jones attempted to reengage with the school

10   district as an NAACP representative.   When district

11   superintendent Evelyn Holman learned of the sexual

12   misconduct allegations regarding Jones, she asked the NAACP

13   to appoint a new representative and had the school

14   district’s attorney write Jones a letter explaining that he

15   was barred from school district property.

16       In 2008, the school district modified the prohibition

17   because Jones’s daughter was attending school in the

18   district.   It said that Jones could enter the school if he

19   needed to participate in his daughter’s education, but he

20   needed to request advance permission before doing so.

21       When Peter Dion replaced Holman as superintendent in

22   2011, he was unaware of Jones’s history.    Shortly after he

23   assumed office, Jones met with Dion regarding Jones’s

24   daughter, and the two discussed a future meeting to attempt

                                   3
 1   to establish a minority parents’ organization.   The meeting

 2   was cancelled when Dion learned of the sexual misconduct

 3   allegations.

 4       Jones then expressed interest in attending a school

 5   board meeting on December 14, 2011.   Dion informed him that

 6   he was still barred from school district property, but could

 7   submit his comments to the school board in writing.    On

 8   February 13, 2012, Dion modified his position to allow Jones

 9   to attend school board meetings if Jones gave advance

10   notice.

11       On August 14, 2012, Jones sued the school district,

12   Holman, Dion, and the principal of Bay Shore High School.

13   The district court dismissed his due process and equal

14   protection claims on a motion to dismiss, and granted

15   summary judgment in favor of defendants on his First

16   Amendment retaliation claim.1

17       Jones alleges that he was barred from school property

18   because the school district was retaliating against him for

19   exercising his First Amendment right to advocate on behalf

20   of minority students, not because it believed he had



         1
          Jones has abandoned or elected not to appeal the
     dismissal of claims: 1) for violation of the First Amendment
     right to intimate association; 2) for violation of New
     York’s Open Meetings Law; and 3) against the Bay Shore High
     School principal.
                                     4
 1   sexually assaulted students.     The district court dismissed

 2   this claim at summary judgment because Jones put forward no

 3   evidence that the defendants were motivated by his speech.

 4   Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).

 5   No rational jury could conclude that the defendants were

 6   motivated by retaliatory animus rather than by legitimate

 7   concerns about student safety.     Dion’s initial enthusiasm

 8   about the idea of a minority parents’ association ended only

 9   after he learned about the allegations of sexual misconduct,

10   and the directive barring Jones from school district

11   property dated back to 1998.     Summary judgment on this count

12   was appropriate.

13       Jones’s equal protection claim alleges that the ban

14   from school district property was an instance of selective

15   enforcement by the school district.     For his selective

16   enforcement claim, Jones must plead: 1) that he was treated

17   differently than other “similarly situated” individuals; and

18   2) “that such differential treatment was based on

19   impermissible considerations such as race, religion, intent

20   to inhibit or punish the exercise of constitutional rights,

21   or malicious or bad faith intent to injure a person.”       Cine

22   SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir.

23   2007) (internal quotations omitted).    Jones alleges that the

24   selective enforcement was impermissibly motivated by

                                    5
 1   retaliation, but he fails to allege why other individuals

 2   were similarly situated to him.      His bare allegation that

 3   others were similarly situated is insufficient to survive a

 4   motion to dismiss.   Smith ex rel. Smith v. Half Hollow Hills

 5   Cent. Sch. Dist., 298 F.3d 168, 173 at n.3 (2d Cir. 2002)

 6   (per curiam); Kamholtz v. Yates Cty., 350 F. App'x 589, 591

 7   (2d Cir. 2009) (summary order).

 8       Finally, Jones alleges that the school district banned

 9   him from its property without due process.      To make out a

10   due process claim, Jones must allege some “protected liberty

11   or property interest” of which he was deprived.      Adams v.

12   Suozzi, 517 F.3d 124, 127 (2d Cir. 2008).      Jones concedes on

13   appeal that he has no protected right to access school

14   property, but he instead claims that he has a right to

15   attend school board meetings.       We may affirm the dismissal

16   of the due process claim on grounds not relied upon by the

17   district court.   Thyroff v. Nationwide Mut. Ins. Co., 460

18   F.3d 400, 405 (2d Cir. 2006).

19       While there may be a protected interest in attending

20   school board meetings, the school district does not

21   categorically bar Jones from attending; it simply requires

22   that he provide advance notice before doing so.2      Especially


         2
          To the extent Jones relies on the very brief period in
     which he was categorically barred from school board
                                     6
 1   considering the school district’s interest in protecting

 2   students from a person who was discharged from teaching for

 3   suspected sexual misconduct with minors, any interest Jones

 4   may have in attending board meetings without providing

 5   advance notice is de minimis and insufficient to sustain a

 6   due process claim.    See Buthy v. Comm'r of Office of Mental

 7   Health of N.Y. State, 818 F.2d 1046, 1050 (2d Cir. 1987);

 8   Zigmund v. Solnit, 199 F.3d 1325 (2d Cir. 1999).

 9       Because we conclude that there was no constitutional

10   violation to begin with, we need not reach the questions of

11   qualified immunity or Monell liability as they pertain to

12   particular defendants.

13       For the foregoing reasons, and finding no merit in

14   Jones’s other arguments, we hereby AFFIRM the judgments of

15   the district court.
16
17                                FOR THE COURT:
18                                CATHERINE O’HAGAN WOLFE, CLERK
19




     meetings, the ban’s quick reversal establishes that it was
     based on a random act by an employee rather than on an
     “established state procedure.” Hellenic Am. Neighborhood
     Action Comm. v. City of N.Y., 101 F.3d 877, 880 (2d Cir.
     1996). Jones could have brought an Article 78 proceeding to
     challenge that temporary ban. N.Y. Pub. Off. Law § 107.
     The presence of “a meaningful postdeprivation remedy” for a
     deprivation not pursuant to “established state procedure”
     means that the Due Process Clause was not violated.
     Hellenic Am., 101 F.3d at 880.
                                    7
