Lee-Walker v. NYC Dep't of Educ.

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 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ [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 42 U.S.C. § 1983 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.” 547 U.S. 410 , 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.” Id. at 418 . 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.” Id. at 421 . 11 Lee‐Walker responds that a pre‐Garcetti case involving speech by 12 educators, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (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.” Id. at 273 . 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, 136 S. Ct. 305, 308 (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, 616 F.3d 100, 105 (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, 563 U.S. 731 , 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, 303 F. App’x 933 , 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] 555 U.S. 223, 236 (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, 42 F.3d 719 (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. 42 F.3d at 723 . 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, 862 F.3d 148, 162 (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, 727 F.3d 248, 254 (2d Cir. [5] 1 2013); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 , 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, 556 U.S. 662 , 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