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