13-75-cv
R.G., T.G. v. Minisink Valley Cent. 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, 40 Foley Square, in the City of New York, on the 21st
day of August, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            CHESTER J. STRAUB,
            SUSAN L. CARNEY,
                          Circuit Judges.
_____________________________________

R.G., on behalf of his minor son, M.G.; T.G., on behalf
of her minor son, M.G.,

                    Plaintiffs-Appellants,

K.K. and S.K., on behalf of their minor daughter, A.K.,

                    Intervenor-Plaintiff,

                              v.                                    No. 13-75-cv

MINISINK VALLEY CENTRAL SCHOOL DISTRICT,

                    Defendant-Appellee,

MARTHA MURRAY, Ed. D.,

            Defendant.
_____________________________________
FOR PLAINTIFFS-APPELLANTS:                                        Michael H. Sussman, Sussman & Watkins,
                                                                  Goshen, NY.

FOR APPELLEE:                                                     Mark C. Rushfield, Shaw, Perelson, May &
                                                                  Lambert, LLP, Poughkeepsie, NY.

       Appeal from an order of the United States District Court for the Southern District of New
York (Lisa Margaret Smith, Magistrate Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s December 21, 2012 order is
AFFIRMED.

                                                  BACKGROUND

        On November 24, 2004, M.G., the son of plaintiffs-appellants R.G. and T.G. (jointly,
“plaintiffs”), was suspended from his high school for one year for engaging in multiple incidents of
sexual misconduct with two female students. Five days later, plaintiffs commenced a § 1983 action
against defendant-appellant Minisink Valley Central School District (“School District”) by filing an
Order to Show Cause as to why a preliminary injunction should not issue and prevent the School
District from suspending M.G. Plaintiffs simultaneously filed a Complaint, asserting that the School
District violated their son’s equal protection rights insofar as it suspended M.G. but did not punish
the female students involved in these incidents.

        On November 29, 2004, the late Judge Charles E. Brieant, Jr. entered plaintiffs’ requested
Order to Show Cause as well as a temporary restraining order prohibiting the School District from
suspending M.G. until December 1, 2004―the date of the Order to Show Cause hearing. At the
December 1, 2004 hearing, Judge Brieant orally granted the preliminary injunction. As Judge
Brieant’s basis for granting the preliminary injunction is relevant to this appeal, we briefly note some
of the statements he made at the hearing.

         In particular, Judge Brieant stated that “today the only issue before the Court is whether the
provisional remedy of injunction should be granted . . . . If the Court grants the provisional remedy,
that will simply allow M.G. to return to school until such time as the merits of his contentions are
decided either administratively or in this court.” Joint App’x 161. Judge Brieant also noted that it
would make sense to “withhold[ ] any approach to the merits [of this case], something in the nature
of abstention, unless and until the administrative proceedings are followed.”1 Id. at 166. Finally,

1 Judge Brieant recognized that plaintiffs had not exhausted their state administrative remedies. Nevertheless, he relied
on another district court decision, Coleman v. Newburgh Enlarged City Sch. Dist., 319 F. Supp. 2d 446 (S.D.N.Y. 2004), for
the proposition that a plaintiff could be awarded equitable relief pending resolution of the administrative proceedings
based, at least in part, on the passage of time caused by the administrative process. We subsequently reversed the
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even though Judge Brieant commented that “there do not seem to be any substantial issues of
controverted fact which would require the taking of evidence at this stage . . . . As to the ultimate
merits, of course, plenary trial would be necessary.” Id. at 186.

         After Judge Brieant granted the preliminary injunction, the School District filed a motion in
our Court, seeking a stay of Judge Brieant’s order. We denied that motion but remanded the cause
to the District Court “with instructions to hold further proceedings on the merits of this case as
expeditiously as possible.” Dist. Ct. Dkt. No. 21. On April 6, 2005, the School District asked us to
clarify what we meant by “further proceedings,” and we stated that we contemplated “an evidentiary
hearing on the motion for a preliminary injunction.”

         In response to our order, Judge Brieant held a conference on April 8, 2005. Although Judge
Brieant had stayed the proceedings pending the resolution of any administrative review, he lifted that
stay to comply with our Mandate “to hold further proceedings on the merits of this case as
expeditiously as possible.” Dist. Ct. Dkt. No. 21. At the conference, Judge Brieant also
consolidated the evidentiary hearing on the preliminary injunction with the trial on the permanent
injunction, pursuant to Federal Rule of Civil Procedure 65(a)(2), and set an expedited discovery
schedule.

        On June 24, 2005, the parties consented to proceeding before a magistrate judge for all
purposes including trial. The consolidated evidentiary hearing and bench trial took place between
August 29 and September 1, 2005 before Magistrate Judge Lisa Margaret Smith. At the conclusion
of the proceedings, she reserved decision.2

        Just under a year later, the School District filed a motion to dismiss the complaint as moot
because M.G. had graduated from high school and had been admitted to college. Magistrate Judge
Smith dismissed the complaint as moot on August 15, 2008. Less than two weeks later, on
September 11, 2008, plaintiffs’ counsel filed a motion for attorney’s fees pursuant to 42 U.S.C.
§ 1988, asserting that plaintiffs were the “prevailing parties” inasmuch as the issuance of the
preliminary injunction allowed them to achieve their litigation objective, which was preventing M.G.
from being suspended.

         Magistrate Judge Smith denied plaintiffs’ motion on December 21, 2011, concluding that
plaintiffs were not “prevailing parties” within the meaning of 42 U.S.C. § 1988 because Judge

District Court’s judgment in Coleman. See Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205 (2d Cir. 2007)
(“In sum, while Coleman had a right not to be removed from NFA based on an erroneous determination of no
manifestation, he had no right to reinstatement while that [administrative] determination was being reviewed.”).

2 On the last day of trial, plaintiffs sought to amend their Complaint by adding a gender discrimination claim and a
procedural due process claim. Magistrate Judge Smith orally granted plaintiffs leave to amend their Complaint with
regard to the gender discrimination claim but reserved decision with regard to the procedural due process claim.
                                                             3
Brieant’s order granting the preliminary injunction was not “‘governed by [an] assessment of the
merits [of plaintiffs’ claim].’” Special App’x 13 (quoting Haley v. Pataki, 106 F.3d 478, 483 (2d Cir.
1997)). This appeal followed.

                                             DISCUSSION

         We review a district court’s decision on whether or not to grant attorney’s fees for abuse of
discretion. See, e.g., Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir. 2001); see also
In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (noting that a district court abuses its discretion if it
“base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence, or render[s] a decision that cannot be located within the range of permissible decisions”
(internal citation and quotation marks omitted)). Whether a party is a “prevailing party” within the
meaning of 42 U.S.C. § 1988, however, is a question of law, which we review de novo. See Dattner v.
Conagra Foods, Inc., 458 F.3d 98, 100 (2d Cir. 2006).

        Under § 1988(b), when a party succeeds on a § 1983 claim, “the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b).
“When a party receives a stay or preliminary injunction but never obtains a final judgment, attorney’s
fees are proper if the court’s action in granting the preliminary injunction is governed by its
assessment of the merits.” Haley, 106 F.3d at 483. “To determine whether a court’s action is
governed by its assessment of the merits or represents a mere procedural maintenance of the status
quo often requires close analysis of the decisional circumstances and reasoning underlying the grant
of preliminary relief.” LaRouche v. Kezer, 20 F.3d 68, 72 (2d Cir. 1994) (internal quotation marks
omitted).

         After a review of the record, we conclude that Magistrate Judge Smith correctly concluded
that Judge Brieant’s order granting a preliminary injunction in favor of M.G. was not “governed by
its assessment of the merits.” Haley, 106 F.3d at 483. This conclusion is supported by our decision
in Christoper P. by Norma P. v. Marcus, 915 F.2d 794 (2d Cir. 1990). In that case, we held that the
plaintiffs were not “prevailing parties” even though “they obtained a temporary restraining order
and a brief extension of that order requiring the defendants to readmit [their son] to the [school]”
because “the procurement of a TRO in which the court does not address the merits of the case but
simply preserves the status quo to avoid irreparable harm to the plaintiff is not by itself sufficient to
give a plaintiff prevailing party status.” Id. at 805 (citing Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.
1979), and Smith v. Thomas, 687 F.2d 113, 115 (5th Cir. 1982)).

        As in Christopher P., the transcript of the December 1, 2004 preliminary injunction hearing
demonstrates that Judge Brieant’s decision was motivated “by his concern for the irreparable harm
the suspension would cause to M.G. while he exhausted administrative remedies, and not by his
consideration of the merits of Plaintiffs’ claims.” Special App’x 16; see also Background, ante.
                                                     4
Moreover, it is clear that the preliminary injunction proceedings were “necessarily hasty and
abbreviated” and “allowed no time for discovery, nor for adequate review of documents or
preparation and presentation of witnesses.” Sole v. Wyner, 551 U.S. 74, 84 (2007) (refusing to award
fees where plaintiffs obtained a preliminary injunction which was vacated by a final decision on the
merits). Although Judge Brieant commented that “there do not seem to be any substantial issues of
controverted fact which would require the taking of evidence at this stage,” he also noted that “[a]s
to the ultimate merits, of course, plenary trial would be necessary.”3 Joint App’x 186; see also
Christopher P., 915 F.2d at 805 (“The court granted the TRO, without addressing the merits which
neither side briefed, solely to preserve the status quo . . . .”). In sum, the record supports Magistrate
Judge Smith’s conclusion that Judge Brieant’s order granting plaintiffs’ motion for a preliminary
injunction was not “governed by its assessment of the merits.” Haley, 106 F.3d at 483.

        In any event, whether Judge Brieant’s order granting the preliminary injunction was an
assessment of the merits of the action is, at most, uncertain. In such circumstances, we have
instructed that “a court should not resolve the uncertainty in favor of a finding that plaintiff
prevailed.” LaRouche, 20 F.3d at 75.

                                                  CONCLUSION

         We have considered all of plaintiffs’ arguments on appeal and find them to be without merit.
For the reasons stated, we AFFIRM the District Court’s December 21, 2012 order, which denied
plaintiffs’ motion for attorney’s fees pursuant to 42 U.S.C. § 1988(b).

                                                                 FOR THE COURT:
                                                                 Catherine O’Hagan Wolfe, Clerk




3 Although Judge Brieant did not think that “substantial issues of controverted fact” existed, Special App’x 6, in
response to the School District’s motion for a stay, we remanded the matter to the District Court with instructions to
conduct an “evidentiary hearing on the motion for a preliminary injunction,” id. at 17.
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