Jones v. Bay Shore Union Free School District

SUMMARY ORDER Charles Jones appeals from judgments of the United States District Court for the Eastern District of New York (Seybert, J.) dismissing his due process and equal protection claims on a motion to dismiss and granting summary judgment for defendants on his First Amendment retaliation claim. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We affirm because: 1) there was no evidence that any action taken against Jones was due to his speech; 2) Jones did not properly plead a selective enforcement claim; and 3) any deprivation of a property interest or a liberty interest was de minim-is and insufficient to make out a due process violation. Jones coached the girls’ junior varsity softball team at Bay Shore High School in the early 1980s, In 1985, the Bay Shore Union Free School District (the “school district”) came into possession of evidence strongly suggesting that Jones had repeatedly sexually assaulted four minor students on his softball team. The school district charged Jones with sexual misconduct. In the ensuing settlement, he resigned while denying any wrongdoing. In 1998, Jones attempted to reengage with the school district as an NAACP representative. When district superintendent Evelyn Holman learned of the sexual misconduct allegations regarding Jones, she asked the NAACP to appoint a new representative and had the school district’s attorney write Jones a letter explaining that he was barred from school district property- In 2008, the school district modified the prohibition because Jones’s daughter was attending school in the district. It said that Jones could enter the school if he needed to participate in his daughter’s education, but he needed to request advance permission before doing so. When Peter Dion replaced Holman as superintendent in 2011, he was unaware of Jones’s history. Shortly after he assumed office, Jones met with Dion regarding Jones’s daughter, and the two discussed a future meeting to attempt to establish a *94 minority parents’ organization. The meeting was cancelled when Dion learned of the sexual misconduct allegations. Jones then expressed interest in attending a school board meeting on December 14, 2011. Dion informed him that he was still barred from school district property, but could submit his comments to the school board in writing. On February 18, 2012, Dion modified his position to allow Jones to attend school board meetings if Jones gave advance notice. On August 14, 2012, Jones sued the school district, Holman, Dion, and the principal of Bay Shore High School. The district court dismissed his due process and equal protection claims on a motion to dismiss, and granted summary judgment in favor of defendants on his First Amendment retaliation claim. 1 Jones alleges that he was barred from school property because the school district was retaliating against him for exercising his First Amendment right to advocate on behalf of minority students, not because it believed he had sexually assaulted students. The district court dismissed this claim at summary judgment because Jones put forward no evidence that the defendants were motivated by his speech. Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). No rational jury could conclude that the defendants were motivated by retaliatory animus rather than by legitimate concerns about student safety. Dion’s initial enthusiasm about the idea of a minority parents’ association ended only after he learned about the allegations of sexual misconduct, and the directive barring Jones from school district property dated back to 1998. Summary judgment on this count was appropriate. Jones’s equal protection claim alleges that the ban from school district property was an instance of selective enforcement by the school district. For his selective enforcement claim, Jones must plead: 1) that he was treated differently than other “similarly situated” individuals; and 2) “that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007) (internal quotations omitted). Jones alleges that the selective enforcement was imper-missibly motivated by retaliation, but he fails to allege why other individuals were similarly situated to him. His bare allegation that others were similarly situated is insufficient to survive a motion to dismiss. Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 at n.3 (2d Cir. 2002) (per curiam); Kamholtz v. Yates Cty., 350 Fed.Appx. 589, 591 (2d Cir. 2009) (summary order). Finally, Jones alleges that the school district banned him from its property without due process. To make out a due process claim, Jones must allege some “protected liberty or property interest” of which he was deprived. Adams v. Suozzi, 517 F.3d 124, 127 (2d Cir. 2008). Jones concedes on appeal that he has no protected right to access school property, but he instead claims that he has a right to attend school board meetings. We may affirm the dismissal of the due process claim on grounds not relied upon by the district court. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006). While there may be a protected interest in attending school board meetings, the school district does not categori *95 cally bar Jones from attending; it simply requires that he provide advance notice before doing so. 2 Especially considering the school district’s interest in protecting students from a person who was discharged from teaching for suspected sexual misconduct with minors, any interest Jones may have in attending board meetings without providing advance notice is de minimis and insufficient to sustain a due process claim. See Buthy v. Comm’r of Office of Mental Health of N.Y. State, 818 F.2d 1046, 1050 (2d Cir. 1987); Zigmund v. Solnit, 199 F.3d 1325 (2d Cir. 1999). Because we conclude that there was no constitutional violation to begin with, we need not reach the questions of qualified immunity or Monell liability as they pertain to particular defendants. For the foregoing reasons, and finding no merit in Jones’s other arguments, we hereby AFFIRM the judgments of the district court. Footnotes [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. [2] To the extent Jones relies on the very brief period in which he was categorically barred from school board 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.