15‐3909‐cv Spring v. Allegany‐Limestone Central 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 14th day of July, two thousand sixteen.

PRESENT: RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. ______________________

KERI SPRING, EUGENE SPRING, JULIANNE SPRING, EUGENE SPRING AND KERI SPRING, on behalf of Gregory Spring, KERI SPRING, as the duly appointed administrator of the estate of Gregory Spring,

Plaintiffs‐Appellants,

‐v.‐ No. 15‐3909

ALLEGANY‐LIMESTONE CENTRAL SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE ALLEGANY‐

1 LIMESTONE CENTRAL SCHOOL DISTRICT, KAREN GEELAN, Superintendent, JOE ZIMMER, President, PHIL QUINLIN, Vice President, MATTHEW KAHM, Member, JEFF BLACK, Member, DAVID FARRELL, Member, JAY KING, Member, KIM PALMER, Member, SUE SCHIFLEY, Member, MAGGIE NUSS, Member, KEVIN STRAUB, Principal, DIANE LOWRY, Teacher Assistant, ERIC HEMPHILL, Teacher/Coach, CHRISTOPHER KENYON, Teacher/Coach, JOHN WOLFGANG, Psychologist, ROBERT DECKER, Psychologist, all in their individual and official capacity, MICHAEL EASTON, and JACOB ROWE,

Defendants‐Appellees,

JOHN DOE(S), JANE DOE, administrators, representatives, agents, employees, and servants of the Allegany‐Limestone Central School District, JOHN DOE(S), JANE DOE, students of the Allegany‐Limestone High School,

Defendants. ______________________

2 FOR APPELLANTS: DANIEL FLYNN (A.J. Bosman, on the brief), Bosman Law Firm, L.L.C., Canastota, NY.

FOR APPELLEES JENNA W. KLUCSIK, Sugarman Law Firm, ALLEGANY‐LIMESTONE LLP, Syracuse, NY. CENTRAL SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE ALLEGANY‐LIMESTONE CENTRAL SCHOOL DISTRICT, KAREN GEELAN, JOE ZIMMER, PHIL QUINLAN, MATTHEW KAHM, JEFF BLACK, DAVID FARRELL, JAY KING, KIM PALMER, SUE SCHIFLEY, MAGGIE NUSS, KEVIN STRAUB, ERIC HEMPHILL, CHRISTOPHER KENYON, JOHN WOLFGANG AND ROBERT DECKER:

FOR APPELLEE DIANE AIMÉE LAFEVER KOCH, Osborn, Reed & LOWRY: Burke, LLP, Rochester, NY.

Appeal from the United States District Court for the Western District of New York (Skretny, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the orders and judgment of the District

Court are AFFIRMED in part and VACATED in part, and the case is

REMANDED for further proceedings.

3 Plaintiffs‐Appellants Keri, Eugene, and Julianne Spring appeal from

several orders and a judgment of the United States District Court for the Western

District of New York (Skretny, J.), which together granted a motion to dismiss

their claims under the Americans with Disabilities Act (“ADA”),

; the Rehabilitation Act,

(a);

, based on

alleged violations of the First Amendment, as well as the Due Process and Equal

Protection Clauses of the Fourteenth Amendment; the New York Constitution,

the New York Civil Rights Law; and New York common law; and further denied

leave to amend with respect to the ADA and Rehabilitation Act claims. Plaintiffs

filed their lawsuit against the defendants in this case after the tragic suicide of

their son and brother, Gregory Spring, a seventeen‐year‐old boy with disabilities.

We assume the parties’ familiarity with the underlying facts and the procedural

history, which we reference only as necessary to explain our conclusions.

First, with respect to the District Court’s denial of leave to amend the

pleadings, we review such denials for abuse of discretion, while keeping in mind

the balance between the federal rules’ liberal policy towards amendment and a

court’s interest in finality. See Williams v. Citigroup Inc.,

, 212–13 (2d

Cir. 2011) (per curiam) (citing Foman v. Davis,

(1962)). A district

4 court necessarily abuses its discretion “if it based its ruling on an erroneous view

of the law or on a clearly erroneous assessment of the evidence.” Highmark Inc. v.

Allcare Health Mgmt. Sys., Inc.,

, 1748 n.2 (2014) (internal quotation

marks omitted). The District Court dismissed Plaintiffs’ ADA and Rehabilitation

Act claims on the ground that the complaint failed to allege adequately that

Gregory’s named conditions susbtantially limited him in a major life activity and

further determined that the proposed amendments to the complaint failed to

cure this defect. We conclude that in holding that the proposed amendments did

not allege a qualifying disability through specific facts about Gregory, App. 208–

09, the District Court clearly misconstrued the amended pleadings and

misapplied the law. The proposed second amended complaint explicitly

identified the effects of Gregory’s conditions on his major life activities of, inter

alia, “speaking,” “learning,” “concentrating,” and “communicating,” identifying

“a long‐standing record of suffering with a variety of motor and vocal tics” with

a specific list of examples including “outbursts,” “involuntary knee slapping and

eye blinking tics,” “repetitive utterance of foul language,” and “repetitive

questioning.” App. 186. It further alleged that the effects intensified “during

periods of stress or unfamiliar settings or situations” and that his disabilities

5 “substantially limited his ability to communicate” because “he was unable to

recognize emotions communicated by tone of voice and misunderstanding of

social cues.” App. 185–86. Taken together, the proposed amendments alleged

sufficient facts to make plausible that the impact on Gregory’s learning ability,

which also prompted a need for special education services, constituted a

substantial limitation. On the facts alleged, therefore, we conclude that these

proposed amendments would have sufficed to meet the requirements of a

qualifying disability, particularly given the ADA Amendments Act of 2008’s

significant relaxation of the standard for substantial limits on major life activities.

See, e.g., Parada v. Banco Industrial de Venezuela, C.A.,

, 68 & n.3 (2d Cir.

2014). Accordingly, we vacate the District Court’s denial of leave to amend and

so much of the judgment as dismissed Plaintiffs’ ADA and Rehabilitation Act

claims.

We affirm the District Court’s dismissal of Plaintiffs’ substantive due

process claims but for different reasons than those articulated below. See

Blackman v. N.Y.C. Transit Auth.,

, 100 (2d Cir. 2007) (“We may, of

course, affirm the district court’s judgment on any ground appearing in the

record, even if the ground is different from the one relied on by the district

6 court.” (internal quotation marks omitted)). A violation of substantive due

process rights requires that the official conduct in question be “‘so egregious, so

outrageous, that it may fairly be said to shock the contemporary conscience.’”

Okin v. Vill. of Cornwall‐on‐Hudson Police Dep’t,

(2d Cir. 2007)

(quoting County of Sacramento v. Lewis,

, 847 n.8 (1998)). In situations

in which time for deliberation is available to the official, we apply a “deliberate

indifference” standard, which requires demonstration of a “willful disregard” of

the “obvious risks,” “serious implications,” and “likelihood” of harm. Id. at 432.

Even assuming that Plaintiffs’ allegations suffice to show that individual

defendants’ conduct amounted to a state‐created danger, see id. at 428–29, there

are no facts alleged from which we can plausibly infer that any individual

defendant had actual knowledge of yet disregarded an obvious or excessive risk

of Gregory’s suicide, see id. at 432 (applying the Eighth Amendment deliberate

indifference requirement that the official both “‘know[] of and disregard[] an

excessive risk’” (quoting Farmer v. Brennan,

(1994)). In order to

state a claim, factual allegations must be more than “‘merely consistent with’”

the defendant’s liability and instead make it “more than a sheer possibility.”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly, 550

, 554 (2007)). We are unable to conclude that the Plaintiffs’ allegations

meet that requirement with respect to any defendant’s deliberate indifference

and must therefore affirm the District Court’s dismissal of the substantive due

process claims.

We also affirm the District Court’s dismissal of Plaintiffs’ equal protection

claims. Plaintiffs first allege that Defendants subjected Gregory to disparate

treatment. Such claims require plaintiffs to show that the person “was treated

differently than others similarly situated as a result of intentional or purposeful

discrimination.” Phillips v. Girdich,

, 129 (2d Cir. 2009). The first

amended complaint contains no allegations regarding disparate treatment

between Gregory and similarly situated students; for example, although it refers

to Gregory’s suspension, it contains no factual allegations that non‐disabled

students who also physically responded to bullying were not punished nor that

Gregory’s bullies committed similar physical acts but were left unpunished. The

absence of such allegations render us unable to make a plausible inference that

Gregory was selectively treated on the basis of his disability or, as is also

required, that such treatment was irrational. See id. (noting that disparate

treatment must fail “the appropriate level of scrutiny” applicable to the equal

8 protection claim); Suffolk Parents of Handicapped Adults v. Wingate,

,

824 n.4 (2d Cir. 1996) (holding that disparate treatment based on disability is

subject to rational basis review).

Plaintiffs also allege that Defendants were deliberately indifferent to

Gregory’s harassment. The factual allegations are insufficient to establish

deliberate indifference of the kind we have required in the context of racial or

sexual harassment in schools. See, e.g., Gant ex rel. Gant v. Wallingford Bd. of Educ.,

, 141 (2d Cir. 1999) (requiring “defendant’s response to known

discrimination ‘[to be] clearly unreasonable in light of the known circumstances’”

(quoting Davis v. Monroe Cty. Bd. of Educ.,

(1999)).

With respect to the retaliation claims, Monell liability claims, and state

constitutional claims, we affirm for substantially the reasons stated by the

District Court. With respect to the state statutory and common‐law claims, we

vacate the order and judgment of the District Court for consideration of whether

supplemental jurisdiction over them should be exercised in light of our remand

of the ADA and Rehabilitation Act claims. We have considered all of Plaintiffs’

remaining arguments and conclude that none warrant further vacatur.

Accordingly, the District Court’s order denying leave to amend the complaint

9 with respect to Plaintiffs’ ADA and Rehabilitation Act claims, its order declining

to exercise supplemental jurisdiction over the state statutory and common‐law

claims, and the corresponding portions of the judgment are VACATED, while

the remainder of the orders and judgment is AFFIRMED. The case is

REMANDED for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

10