16‐4164‐cv Lee‐Walker v. NYC Dep’t of Educ.

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 TO 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 17th day of October, two thousand 4 seventeen. 5 6 PRESENT: AMALYA L. KEARSE, 7 DEBRA ANN LIVINGSTON, 8 RAYMOND J. LOHIER, JR., 9 Circuit Judges. 10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 11 12 JEENA LEE‐WALKER, 13 14 Plaintiff‐Appellant, 15 16 v. No. 16‐4164‐cv 17 18 NEW YORK CITY DEPARTMENT OF 19 EDUCATION, FRED WALSH, individually, 20 STEPHEN NOONAN, individually, 21 CHRISTOPHER YARMY, individually, BENNY 22 UREANA, individually, 23 24 Defendants‐Appellees. 25 26 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 27 28 1 2 FOR APPELLANT: STEPHEN BERGSTEIN, Bergstein & 3 Ullrich, LLP, New Paltz, NY. 4 5 FOR APPELLEES: JONATHAN A. POPOLOW (Jane Lori 6 Gordon, on the brief), for Zachary W. 7 Carter, Corporation Counsel of the 8 City of New York, New York, NY. 9 10 Appeal from a judgment of the United States District Court for the

11 Southern District of New York (John G. Koeltl, Judge). UPON DUE

12 CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the

13 judgment of the District Court is AFFIRMED.

14 Jeena Lee‐Walker appeals from a judgment of the District Court (Koeltl, J.)

15 dismissing her claim under

against the New York City

16 Department of Education (“DOE”) and individual defendants Fred Walsh,

17 Stephen Noonan, Christopher Yarmy, and Benny Ureana. The District Court

18 held that Lee‐Walker did not engage in speech protected by the First Amendment

19 and in the alternative that the individual defendants were entitled to qualified

20 immunity for their actions. We assume the parties’ familiarity with the facts and

21 record of the prior proceedings, to which we refer only as necessary to explain our

22 decision to affirm.

2 1 Citing Garcetti v. Ceballos, DOE argues that the First Amendment does not

2 protect Lee‐Walker’s speech about the “Central Park Five” case because she did

3 not “speak as a citizen addressing matters of public concern.”

, 417

4 (2006). In Garcetti, the Supreme Court held that where an employee does not

5 speak as a citizen on a matter of public importance, “the employee has no First

6 Amendment cause of action based on his or her employer’s reaction to the

7 speech.”

. As the Court explained, “when public employees make

8 statements pursuant to their official duties, the employees are not speaking as

9 citizens for First Amendment purposes, and the Constitution does not insulate

10 their communications from employer discipline.”

.

11 Lee‐Walker responds that a pre‐Garcetti case involving speech by

12 educators, Hazelwood School District v. Kuhlmeier,

(1988), not

13 Garcetti, controls this case. Under the Hazelwood standard, we determine

14 whether limits on the content of school sponsored speech are “reasonably related

15 to legitimate pedagogical concerns.”

.

16 We conclude that the individual defendants are entitled to qualified

17 immunity because their alleged conduct “does not violate clearly established

18 statutory or constitutional rights of which a reasonable person would have

3 1 known.” Mullenix v. Luna,

(2015) (quotation marks omitted).

2 “To determine whether a right is clearly established, we look to (1) whether the

3 right was defined with reasonable specificity; (2) whether Supreme Court or court

4 of appeals case law supports the existence of the right in question, and (3)

5 whether under preexisting law a reasonable defendant would have understood

6 that his or her acts were unlawful.” Scott v. Fischer,

(2d Cir.

7 2010). “We do not require a case directly on point, but existing precedent must

8 have placed the statutory or constitutional question beyond debate.” Ashcroft v.

9 al–Kidd,

, 741 (2011).

10 Neither Garcetti nor Hazelwood clearly governs this case. In our only

11 decision directly addressing the issue, we explicitly stated that “[i]t is an open

12 question in this Circuit whether Garcetti applies to classroom instruction,” and

13 we chose “not [to] resolve the issue.” Panse v. Eastwood,

, 934–

14 35 (2d Cir. 2008). For that reason, there was no clearly established law premised

15 on Garcetti under which the defendants would understand that Lee‐Walker’s

16 speech was protected by the First Amendment, and the defendants could have

17 reasonably believed that Garcetti stripped her of those protections. Because we

18 decide the claims against the individual defendants on the basis of qualified

4 1 immunity, we need not reach the issue of whether Garcetti in fact applies to

2 speech made by educators as a constitutional matter. See Pearson v. Callahan,

3

(2009). Nor is it clear how, if at all, Garcetti displaces

4 Hazelwood or our decision in Silano v. Sag Harbor Union Free School District

5 Board of Education,

(2d Cir. 1994), on which Lee‐Walker also relies, in

6 the context of speech by a public school teacher. Hazelwood, after all, resolved

7 the very different question whether school officials could restrict student

8 contributions to a school‐sponsored newspaper, even without threat of imminent

9 disruption. And in Silano we applied the Hazelwood standard in the case of a

10 guest lecturer at a public high school and concluded that the school had

11 legitimate pedagogical reasons for restricting the speech at issue.

.

12 For these reasons we agree with the District Court’s dismissal of the claim against

13 the individual defendants on qualified immunity grounds.

14 Because qualified immunity is available only to individuals sued for

15 damages in their individual capacity, Soto v. Gaudett,

(2d Cir.

16 2017), it has no bearing on DOE’s liability. DOE may be held liable if it has

17 “adopt[ed] customs or policies that violate federal law and result in tortious

18 violation of a plaintiff’s rights.” Askins v. Doe No. 1,

(2d Cir.

5 1 2013); see Monell v. Dep’t of Soc. Servs.,

, 690–91 (1978). We

2 conclude that Lee‐Walker’s allegations that DOE acted pursuant to its practices,

3 customs, and policies are insufficient to state a plausible Monell claim against

4 DOE. See Ashcroft v. Iqbal,

, 678–79 (2009).

5 Lee‐Walker also argues that she should have been allowed to amend her

6 complaint to introduce requests for equitable relief from DOE. However, the

7 District Court denied her motion for leave to amend as moot, noting that at

8 argument Lee‐Walker stated “that she did not seek to file an amended complaint

9 if her First Amendment claim was dismissed.” App’x 135. Lee‐Walker does not

10 contend that she did not so state; her First Amendment claims were properly

11 dismissed for the reasons discussed above; and therefore there was no abuse of

12 discretion in the District Court’s denial of leave to amend.

13 We have considered Lee‐Walker’s remaining arguments and conclude that

14 they are without merit. For the foregoing reasons, the judgment of the District

15 Court is AFFIRMED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court 18

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