Briccetti, J.

MEMORANDUM DECISION :

This action arises from a physical examination of plaintiff T.P. by defendants and T.P.'s subsequent expulsion from high school. Now pending are motions to dismiss filed by defendants Elmsford Union Free School District ("School District"), Andrea Hamilton, Marc Baiocco, and Nancy Cordero (collectively, "district defendants") (Doc. #14), and by defendant Ellen Whalen. (Doc. #18.)

The Court GRANTS the district defendants' motion to dismiss as to (1) plaintiff's Monell claim without prejudice; (2) plaintiff's substantive due process claim relating to the examination as to Hamilton, Baiocco, and Cordero; (3) plaintiff's substantive due process claim relating to the expulsion without prejudice; (4) plaintiff's equal protection claim as to the examination without prejudice; (5) plaintiff's equal protection claim as to the expulsion; (6) plaintiff's claim under 20 U.S.C. § 1681 ("Title IX") relating to the examination; (7) plaintiff's claim for negligence; (8) plaintiff's claim under New York Executive Law § 296(4); (9) plaintiff's claim for intentional infliction of emotional distress as to the individual district defendants; and (10) plaintiff's separate claim for punitive damages.

The Court GRANTS defendant Whalen's motion as to (1) plaintiff's Title IX claim without prejudice; (2) plaintiff's negligence claim without prejudice; and (3) plaintiff's equal protection claim without prejudice.

The motions to dismiss are also GRANTED as to all claims asserted by plaintiff Blondel Patterson, individually.

The motions are DENIED as to the following claims, which remain pending: (1) plaintiff's substantive due process claim against Whalen; (2) plaintiff's Title IX retaliation claim against the School District; (3) plaintiff's claim under New York Executive Law § 296(7) against the district defendants; (4) plaintiff's claims for assault and battery against Whalen; and (5) plaintiff's claims for intentional infliction of emotional distress against the School District and Whalen.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 as to plaintiffs' federal law claims and 28 U.S.C. § 1367(a) as to plaintiffs' state law claims.

BACKGROUND

For purposes of ruling on defendants' motions to dismiss, the Court accepts all allegations of the complaint as true, as set forth below.

During the 2010-2011 school year, plaintiff T.P. was a student in the seventh grade at Alexander Hamilton High School in the School District. Cordero was the school nurse at the school. Hamilton was assistant principal of the school, and Baiocco was principal of the school.

On November 8, 2010, T.P. was instructed to report to the nurse's office. Cordero told T.P. the school required a physical examination of T.P. before she could play on the school's basketball team. T.P. told Cordero her regular pediatrician had performed a physical examination on her earlier that year. Neither T.P. nor her mother, plaintiff Blondel Patterson, had prior notice of the examination and neither gave their consent.

Cordero instructed T.P. to go into a separate room connected to her office. Besides T.P., only defendant Whalen, a medical doctor, was in the room. Once in the room, Whalen examined T.P. After briefly asking T.P. questions about her medical history, Whalen instructed T.P. to lie down on a medical bed, and remove portions of her clothing and expose her genitalia. At the time, T.P. was menstruating. According to the complaint, Whalen examined T.P.'s genitalia with a flashlight. T.P. was in the examination room with Whalen for approximately fifteen to twenty minutes. After the examination, Blondel Patterson called Cordero and complained about the examination of T.P.

T.P. alleges she suffered harassment and retaliation from employees and teachers at the school. According to the complaint, on November 9, 2010, T.P. was removed from the school's lunch program.

On March 31, 2011, according to the complaint, the school expelled T.P. without cause. Earlier that day, the school had received a request for T.P.'s transcript from a neighboring high school so that T.P. could transfer to that high school. A guidance counselor informed Patterson that T.P. was being expelled because the school had received the request for her transcript. Plaintiffs assert T.P. was in the process of transferring to another school at this time due to defendants' retaliatory conduct.

DISCUSSION

The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

To determine which allegations it may consider, the Court first identifies conclusory pleadings that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. at 1949-50. ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").

Once it has identified well-pleaded factual allegations, the Court should "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. at 1950. The Supreme Court has defined plausibility as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Plaintiffs assert claims for violations of their due process and equal protection rights under 42 U.S.C. § 1983; violation of Title IX; violations of New York Executive Law § 296(4) and (7); and under New York common law for negligence, battery, assault, and intentional infliction of emotional distress. By a separate count in the complaint, plaintiffs seek punitive damages.

Defendants essentially argue the physical examination was properly done pursuant to state rules and regulations required of all students participating in a sport. In support of this, defendants have submitted state policies and guidelines demonstrating those requirements. The Court can take judicial notice of these policies and guidelines on a motion to dismiss and review them. At this stage, however, the Court is without a medical expert's insights about the scope and nature of the examination and without witnesses to testify on consent and notice issues. Therefore, although defendants may have a valid defense to plaintiffs' claims, many of the causes of action cannot be resolved on a Rule 12(b)(6) motion.

I. Plaintiff Blondel Patterson's Claims

Defendants move to dismiss claims asserted by plaintiff Blondel Patterson because she has not asserted any injuries directly suffered by herself, rather only injuries suffered by her daughter, T.P.

Section 1983 does not recognize a claim on behalf of one person arising from a violation of another person's rights. See, e.g., TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d 577, 590 (S.D.N.Y. 2011); Bliss v. Putnam Valley Cent. Sch. Dist., 2011 U.S. Dist. LEXIS 35485, at *8 (S.D.N.Y. Mar. 24, 2011); Harrison v. Harlem Hosp., 2007 U.S. Dist. LEXIS 71908, at *12-13 (S.D.N.Y. Sept. 28, 2007) (citing cases); see also Bright v. City of New York, 1985 U.S. Dist. LEXIS 21042, at *6-7 (S.D.N.Y. 1985) ("It appears that an individual's claim for emotional distress arising from alleged violations of a loved one's civil rights, standing alone, is not cognizable under section 1983."). Blondel Patterson cannot recover on any derivative claim based on a Section 1983 civil rights or Title IX violation simply because she is T.P.'s mother. Therefore, she cannot assert any federal claims.

In addition, the allegations of the complaint make clear Patterson was not the victim of any assault or battery, nor was she subject to any negligent actions by defendants. As for Patterson's claim for intentional infliction of emotional distress, the Restatement (Second) of Torts § 46 recognizes that a claim for intentional infliction of emotional distress may lie where extreme and outrageous conduct is directed at a third person and the plaintiff is present at the time of the triggering event. Restatement (Second) of Torts § 46(2)(a) & cmt. l (1965); TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d at 590. There is no allegation Patterson was present at any encounter in which the alleged emotional distress arose. See Jackson v. Kump, 1994 U.S. Dist. LEXIS 255 (S.D.N.Y. Jan. 13, 1994). Therefore, she cannot maintain an emotional distress claim on a bystander theory, and all claims by Patterson in her individual capacity are dismissed. Because the Court is dismissing all claims asserted by Patterson, it will hereafter refer to "plaintiff" in the singular as a reference to T.P.

II. Plaintiff's Monell Claim

A school district may be liable for deprivation of a student's rights pursuant to Section 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . ." Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); see also Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257-58 (2009) (discussing school district liability under Section 1983). A school district may be held liable for inadequate training, supervision or hiring where the failure to train, hire or supervise amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989). Here, plaintiff's allegations are precisely the opposite of a Monell claim. T.P. asserts defendants acted in contravention of the school's rules, regulations, policies, and procedures. This is the antithesis of a Monell claim, and plaintiff's Section 1983 claims against the School District must therefore be dismissed without prejudice.

III. Plaintiff's Substantive Due Process Claim

Defendants seek dismissal of plaintiff's substantive due process claim because they argue the examination did not violate T.P.'s constitutional rights. "Substantive due process protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against a government action that is merely 'incorrect or ill advised.'" Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).

A. Physical Examination of T.P.

Defendants assert the physical examination of T.P. was required by the Regulations of the Commissioner of Education as a prerequisite to T.P.'s playing on the basketball team. Specifically, state regulations require that schools "provide health examinations before participation in strenuous physical activity and periodically throughout the season as necessary." 8 N.Y.C.R.R. § 136.3(a)(8). District defendants have submitted "Student Health Appraisals Guidelines" issued by the New York State Education Department ("SED"). According to these guidelines, a physical examination is required of a student before she participates in interscholastic sports. Guidelines, at p. 2. If a student's primary physician is authorized to practice medicine in New York, his report may be deemed adequate. Id. The guidelines state the examination should be done with "due regard for privacy and comfort." Id. at p. 5 (citing N.Y. Educ. Law § 904). Before the physical examination, the student should remove all her clothing, except undergarments. Id. at p. 5. The examination should include an examination of the student's genitalia, including a female student's developmental stage and pubic hair. The developmental stage is to be evaluated in accordance with the Tanner Scale, which is a scale to measure physical development specifically related to puberty. Id. at p. 6.

Courts in the Second Circuit recognize a constitutional right to bodily integrity. See Lombardi v. Whitman, 485 F.3d 73, 78-79 (2d Cir. 2007) ("The substantive component of due process encompasses, among other things, an individual's right to bodily integrity free from unjustifiable government interference."); Pabon v. Wright, 459 F.3d 241, 253 (2d Cir. 2006) (noting that the Fourteenth Amendment protects an individual's interest in bodily integrity); United States v. Giordano, 442 F.3d 30, 47 (2d Cir. 2006); Bliss v. Putnam Valley Cent. Sch. Dist., 2011 U.S. Dist. LEXIS 35485, at *22. Plaintiff must show the individual defendants' conduct was "egregious" and "can fairly be viewed as so brutal and offensive to human dignity as to shock the conscience." Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir. 2002); see also Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005).

At this stage, the Court cannot conclude defendants' conduct was reasonable in light of the circumstances. The Court has no evidence concerning the scope, nature, or necessity of plaintiff's physical examination, and the Court does not know the extent of an appropriate physical examination of a twelve year old seeking to participate in a school sport. Further, there is a lingering question as to why plaintiff's physician's examination did not suffice to meet the state requirements.

Defendants argue plaintiff consented to this search by seeking to participate in a high school sport. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995) (discussing decreased expectation of privacy by student athletes in locker room); see also Bd. of Educ. v. Earls, 536 U.S. 822 (2002). However, gender-segregated communal locker rooms and urine testing are meaningfully different in scope and intrusive nature than the examination of a student's genitalia with a flashlight. A more developed record would enable the Court to determine the reasonableness of the examination. At this stage, the Court finds plaintiff has met her burden of asserting a substantive due process violation related to the physical examination.

Of course, a Section 1983 claim requires the personal involvement of the individual named defendants. See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (finding personal involvement of the individual defendants is a prerequisite to an award of damages under Section 1983). Here, there are no allegations defendants Hamilton or Baiocco were involved in the examination by Whalen. In addition, the allegations as to Cordero assert she instructed plaintiff that a physical examination was required and told plaintiff to go into the examination room. These allegations do not rise to the level required to support a substantive due process claim for a violation of T.P.'s bodily integrity. Therefore, there can be no Section 1983 claim relating to the examination as to defendants Hamilton, Baiocco, and Cordero.

Thus, the motions are denied as to Whalen and granted as to Hamitlon, Baiocco, and Cordero.

B. Expulsion of T.P.

Count Five asserts a substantive due process claim relating to the "expulsion" of T.P. against defendants School District, Hamilton, and Baiocco. The Fourteenth Amendment protects a student's right to be free from discipline only in the "rare case" where there is lacking a rational relationship between the punishment and the offense. Rosa R. v. Connelly, 889 F.2d 435, 439 (2d Cir. 1989); see also Wood v. Strickland, 420 U.S. 308, 326 (1975) ("It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school . . . . The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.").

The complaint, insofar as it alleges T.P. was expelled without just cause, states a theory which the Court would generally permit to proceed. However, the allegations relating to the expulsion are sparse and lack sufficient specificity as to who made the decision to expel T.P. and whether it was done by a policymaker or pursuant to a school policy so as to warrant Monell liability against the school. Although discovery may be required to determine how the decision was made to expel T.P., plaintiff must nonetheless include as many facts as she can plead to defeat a Rule 12(b)(6) motion. See Ashcroft v. Iqbal, 129 S. Ct. 1937. The complaint as it currently reads is too sparse and insufficient. This claim is dismissed without prejudice.

IV. Equal Protection Claim

Count Three of the complaint alleges defendants School District, Hamilton, and Baiocco violated plaintiff's equal protection rights when they expelled her. In her response to the district defendants' motion, plaintiff also argues she was denied equal protection of the law when she was examined.

The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To state such a claim and to withstand a motion to dismiss, a plaintiff must allege specific examples of others similarly situated who were treated more favorably. Ruston v. Town Board for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (plaintiffs failed to state viable equal protection claim where they merely alleged less favorable treatment than "similarly situated" persons but did not plead specific examples). Because plaintiff has failed to plead specifically the existence of or identify potential comparators, this claim is dismissed as to both the examination and expulsion.

In her opposition, plaintiff seeks leave to amend her complaint to include allegations that, upon information and belief, other students on the school's basketball team were not required to undergo a physical examination, and if they were required to undergo the examination, they had consented to the search or the students had not undergone a similarly invasive examination. This is a change from the theory pleaded in the complaint. Leave to amend is not granted as to the allegations set forth in the complaint relating to the expulsion.

Leave is granted to amend the complaint to include additional, specific allegations concerning the examination. Plaintiff's proposed amendments to the complaint, however, are sparse, conclusory and insufficient. Leave to add these allegations is denied on the ground that such amendment would be futile. See Fed. R. Civ. P. 15(a); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir. 2007); see also Jarrach v. Sanger, 2010 U.S. Dist. LEXIS 57248, at *25 (E.D.N.Y. June 9, 2010) ("Conclusory allegations of selective treatment are insufficient to state an equal protection claim."); D.F. v. Bd. of Educ. of Syosset Cent. Sch. Dist., 386 F. Supp. 2d 119, 128 (E.D.N.Y. 2005) (dismissing claim where plaintiff alleged "upon information and belief, other students attending middle school within the School District who engaged in similar or more severe conduct, including actual threats of violence, received suspensions of a lesser duration than D.F.'s."); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988). Nonetheless, the Court permits plaintiff to amend her complaint to add sufficient allegations as to specific individuals who were treated differently than her regarding the physical examination.

V. Claim under Title IX

Count Four asserts a claim under of the Education Amendments of 1972, 20 U.S.C. § 1681 (i.e., Title IX), against defendants School District, Hamilton, and Baiocco. Specifically, she alleges (1) defendants acted with deliberate indifference to her regarding the examination; and (2) she was expelled in retaliation for complaining about the physical examination.

A. Examination

Title IX provides "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The law permits a recipient of federal funds to be held liable for discrimination stemming from teacher-on-student sexual misconduct. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992); Zamora v. N. Salem Cent. Sch. Dist., 414 F. Supp. 2d 418, 423 (S.D.N.Y. 2006). To establish a claim based on harassment under Title IX, plaintiff must show: "(1) the alleged harassment was so severe, pervasive, and objectively offensive that it deprived the plaintiff of access to the educational opportunities or benefits provided by the school; (2) the funding recipient had actual knowledge of the sexual harassment; and (3) the funding recipient was deliberately indifferent to the harassment." Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642-43 (1999) (addressing student-on-student harassment); Bliss v. Putnam Valley Cent. Sch. Dist., 2011 U.S. Dist. LEXIS 35485, at *12-13 (addressing teacher-on-student conduct). Liability can only be found in "circumstances wherein the [funding] recipient exercises substantial control over both the harasser and the context in which the known harassment occurs." Davis, 526 U.S. at 645. There can be no claim under Title IX against an individual defendant who does not receive federal funding under Title IX. Zamora, 414 F. Supp. 2d at 423.

Because they are individuals and do not receive federal funding, plaintiff cannot maintain her Title IX claim against defendants Hamilton or Baiocco. Their motion is granted as to this claim.

As to liability against the School District, a single incident of sexual assault may suffice to create liability under Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. at 642-43. See Bliss v. Putnam Valley Cent. Sch. Dist., 2011 U.S. Dist. LEXIS 35485, at *13-14; M. v. Stamford Bd. of Educ., 2008 U.S. Dist. LEXIS 51933, at *24 (D. Conn. July 7, 2008) (finding one incident of sexual assault to be sufficiently severe so as to preclude summary judgment); Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999) (noting that a sexual assault constitutes "severe, pervasive, and objectively offensive sexual harassment"). Therefore, plaintiff's allegations are sufficient in this regard.

Only actual notice by an "appropriate person" who can rectify a violation of Title IX can support a claim under Title IX. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). In addition, the Court of Appeals has provided that "[d]eliberate indifference may be found both when the defendant's response to known discrimination is clearly unreasonable in light of the known circumstances" or "when remedial action only follows after a lengthy and unjustified delay." Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir. 2003). The deliberate indifference "must, at a minimum, cause [the student] to undergo harassment or make [her] liable or vulnerable to it." Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. at 645.

Plaintiff is silent as to how the School District had actual knowledge of the incident and was deliberately indifferent to it. There are no allegations that the School District knew of the examination beforehand and failed to stop it or that the School District's response was clearly unreasonable. Allegations as to the School District's knowledge are inadequately sparse. This claim is dismissed without prejudice.

B. Retaliation Under Title IX

"[R]etaliation against individuals because they complain of sex discrimination is 'intentional discrimination that violates the clear terms of [Title IX].'" Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005) (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. at 642). To assert a claim for retaliation, plaintiff must plead "(1) protected activity by the plaintiff; (2) knowledge by the defendant of the protected activity; (3) adverse school-related action; and (4) a causal connection between the protected activity and the adverse action." Papelino v. Albany College of Pharm. of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011). Plaintiff need not establish which individual defendants had knowledge of the protected activity, only that the entity itself was "on notice." Id. at 92. Defendants argue plaintiff cannot plead she engaged in any protected activity because the physical examination did not constitute sexual assault or inappropriate touching. The Court disagrees and finds plaintiff has adequately pleaded a claim for retaliation under Title IX.

VI. Negligence

Count One of the complaint asserts a claim for negligence against each defendant relating to the physical examination. To assert a claim for negligence under New York law, plaintiff must allege (1) a duty owed by defendants to plaintiff; (2) a breach of that duty; and (3) injuries proximately caused by the breach. Stagl v. Delta Airlines, 52 F.3d 463, 467 (2d Cir. 1995).

There are no allegations of any breach of a duty related to the examination by defendants Hamilton or Baiocco. Therefore, the negligence claim against them is dismissed.

As to Cordero, there is no allegation of any negligent behavior by her during the examination. According to the complaint, she informed T.P. that a physical examination was required. Cordero did not administer the examination. She cannot be liable under a negligence theory.

Finally, regarding defendant Whalen, plaintiff alleges she was negligent because she violated the school's "rules, regulations, policies and procedures." Without identifying any such rule, regulation, policy, or procedure, plaintiff's allegations are insufficient to state a claim. This claim is therefore dismissed without prejudice.

VII. Claims under New York Executive Law

Counts Six alleges defendant School District violated New York Executive Law § 296(4), while Count Seven asserts a claim under Executive Law § 296(7) against defendants School District, Hamilton, Baiocco, and Cordero.

Section 296(4) provides: "It shall be an unlawful discriminatory practice for an education corporation or association . . . to deny the use of its facilities to any person otherwise qualified, or to permit the harassment of any student or applicant, by reason of his race, color . . . ." A school district is not an "education corporation or association" under the law. See East Meadow Union Free School Dist. v New York State Div. of Human Rights, 886 N.Y.S.2d 211, 212 (2d Dep't 2009) ("[A] school district is a public corporation. Hence, a school district cannot be an 'education corporation' within the meaning of Human Rights Law § 296(4)."); see also TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d at 604. Rather, it is a "municipal corporation." See N.Y. Gen. Constr. Law § 66(2). Therefore, this claim cannot stand against defendant School District.

Claims under the New York Human Rights Law are evaluated under the same standard as analogous claims under Title IX. See Weinstock v. Columbia University, 224 F.3d 33, 42 n.1 (2d Cir. 2000). Because the Court has found plaintiff adequately pleaded a claim for Title IX retaliation, it finds plaintiff has adequately pleaded a claim for retaliation under the New York Human Rights Law.

Defendants argue plaintiff cannot maintain a claim under Section 296(7) against the School District because it is not a "person" under the law. Section 296(7) states:

It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because . . . she has opposed any practices forbidden under this article or because . . . she has filed a complaint, testified or assisted in any proceeding under this article.

VIII. Plaintiff's Assault and Battery Claims Against Defendant Whalen

Counts Eight and Nine assert claims of assault and battery against Whalen. Whalen seeks dismissal of these counts, arguing she lacked the requisite intent to perform these actions under New York law.

"To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact." Marilyn S. v Independent Group Home Living Program, Inc., 903 N.Y.S.2d 403, 406 (2d Dep't 2010). A person commits a battery when she "intentionally touches another person, without that person's consent, and causes an offensive bodily contact . . . . The intent required for battery is intent to cause a bodily contact that a reasonable person would find offensive." Jeffreys v. Griffin, 1 N.Y.3d 34, 41 n.2 (2003) (quoting New York Pattern Jury Instructions 2d 3:3 (2003)). A completely unpermitted touching by a medical practitioner of a patient is a battery. See, e.g., Cross v. Colen, 775 N.Y.S.2d 307, 308 (1st Dep't 2004) (claim sounded in battery where plaintiff's only claim "is that she simply did not consent to the procedure, and indeed expressly rejected it"); Laskowitz v. Ciba Vision Corp., 632 N.Y.S.2d 845, 846 (2d Dep't 1995) ("A problem in informed consent arises when a physician or other therapist obtains a consent to treatment adequate to insulate him from prosecution for criminal assault and from liability in a civil assault or battery action, but when, nonetheless, the patient contends that consent would have been withheld if an adequate disclosure had been made concerning his condition as well as the potential dangers of and alternatives to the proposed procedure or therapy."). Accordingly, battery applies in the medical context "only where the patient or her guardian gives no consent and the doctor intends to 'cause a bodily contact that a reasonable person would find offensive.'" Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., 425 F.3d 126, 134 (2d Cir. 2005) (quoting Jeffreys, 769 N.Y.S.2d at 41 n.2).

Based on the allegations of the complaint, neither plaintiff nor her mother provided consent for the medical examination. Additionally, a reasonable person could find the examination of a twelve year old's genitals with a flashlight while she is menstruating offensive. Therefore, these claims will not be dismissed. The Court notes this conclusion may be different after discovery, when the Court has the benefit of a medical expert's testimony to describe the nature and scope of the Tanner Scale examination.

IX. Claim for Intentional Infliction of Emotional Distress

Counts Ten and Eleven assert claims for intentional infliction of emotional distress against each defendant relating to the physical examination and the expulsion. A claim for intentional infliction of emotional distress under New York law requires plaintiff to plead (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983). The standard for asserting a claim is "rigorous, and difficult to satisfy." Howell, 81 N.Y.2d at 121. As the Court of Appeals recognized in Howell, it had rejected every claim for intentional infliction of emotional distress because the conduct was not sufficiently outrageous or extreme. Those claims upheld by the Appellate Division have been "supported by allegations detailing a longstanding campaign of deliberate, systematic, and malicious harassment of the plaintiff." Seltzer v. Bayer, 709 N.Y.S.2d 21, 23 (1st Dep't 2000). The Court determines in the first instance whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999).

To evaluate these claims appropriately, it is necessary to distinguish the allegations against each defendant individually.

As to Cordero, the allegations against her do not rise to the level of intentional infliction of emotional distress. She informed plaintiff an examination was required, but did not directly participate in it. Therefore, plaintiff cannot maintain these claims against her.

As to defendants Hamilton and Baiocco, plaintiff does not cite any cases for the proposition that an action for intentional infliction of emotional distress can rest on a failure to respond to an alleged assault. Rather, cases hold the opposite to be true, that a response to an assault cannot serve as the basis for a claim. See TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d at 605 ("[T]he Court will not permit plaintiffs to proceed on an intentional infliction of emotional distress claim based on defendants' failure to address the discrimination and violence."); Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 492 (S.D.N.Y. 1999). The Court will not permit plaintiff to proceed on an intentional infliction of emotional distress claims based on defendants' failure to respond to the examination or in their handling of the expulsion.

Finally, because plaintiff has alleged a sexual battery involving Whalen, the Court will permit the emotional distress claims to proceed against her. See Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 440 (S.D.N.Y. 1998) (citing cases standing for the proposition that an intentional infliction of emotional distress claim may proceed where there is an allegation of a sexual battery). Similarly, the School District may be vicariously liable for Whalen's action under the doctrine of respondeat superior if Whalen was acting in the scope of her employment. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); Olszewski v. Bloomberg L.P., 1997 U.S. Dist. LEXIS 9654, 23-24 (S.D.N.Y. July 3, 1997). The Court will not dismiss these claims as to defendants School District or Whalen.

X. Punitive Damages

Plaintiff seeks punitive damages from the district defendants for the examination and expulsion. There is no separate claim for punitive damages recognized under New York law. See Martin v. Dickson, 100 Fed. Appx. 14, 16 (2d Cir. 2004); Rocanova v. Equitable Life Assur. Soc'y, 83 N.Y.2d 603, 616 (1994); Paisley v. Coin Device Corp., 773 N.Y.S.2d 582, 583 (2d Dep't 2004) ("We note that no separate cause of action for punitive damages lies for pleading purposes."). Therefore, plaintiff cannot maintain a separate cause of action for punitive damages.

In addition, punitive damages are not available against a government entity like the School District. See Newport v. Fact Concerts, 453 U.S. 247, 260 & n.21 (1981); Pierce v. Sullivan W. Cent. Sch. Dist., 379 F.3d 56, 58 n.3 (2d Cir. 2004). Plaintiff, therefore, cannot obtain punitive damages from defendant School District.

Finally, as to punitive damages from the individual district defendants, the Court will permit plaintiff to seek such damages at this point. Whether such a claim will be presented to the jury will be determined at a later stage.

CONCLUSION

For the foregoing reasons, the Court GRANTS the motion to dismiss (Doc. #14) filed by defendants School District, Hamilton, Baiocco, and Cordero as to (1) plaintiff's Monell claim without prejudice; (2) plaintiff's substantive due process claim relating to the examination as to Hamilton, Baiocco, and Cordero; (3) plaintiff's substantive due process claim relating to the expulsion without prejudice; (4) plaintiff's equal protection claim as to the examination without prejudice; (5) plaintiff's equal protection claim as to the expulsion; (6) plaintiff's Title IX claim relating to the examination; (7) plaintiff's claim for negligence; (8) plaintiff's claim under New York Executive Law § 296(4); (9) plaintiff's claim for intentional infliction of emotional distress as to the individual district defendants; and (10) plaintiff's separate claim for punitive damages.

The Court GRANTS defendant Whalen's motion (Doc. #18) as to (1) plaintiff's Title IX claim without prejudice; (2) plaintiff's negligence claim without prejudice; and (3) plaintiff's equal protection claim without prejudice.

The motions are also GRANTED as to all claims by plaintiff Blondel Patterson, in her individual capacity. She is dismissed as a plaintiff in this matter.

The motions are DENIED as to the following claims, which remain pending, (1) plaintiff's substantive due process claim against Whalen; (2) plaintiff's Title IX retaliation claim against the School District; (3) plaintiff's claim under Section 296(7) of the New York Human Rights Law against the district defendants; (4) plaintiff's claims for assault and battery against Whalen; and (5) plaintiff's claims for intentional infliction of emotional distress against the School District and Whalen.

As to those claims dismissed without prejudice, plaintiff may file an amended complaint by no later than March 12, 2012.

The Clerk is instructed to terminate the pending motions (Docs. #14, 18) and to terminate Blondel Patterson as a plaintiff in this matter.

Counsel are directed to appear for an in-person case management conference on March 16, 2012 at 10:00 a.m. Defendants shall answer or otherwise respond to the amended complaint in the normal course as provided by Rule 12(a); they need not file an answer or otherwise respond to the amended complaint prior to the conference. Dated: February 27, 2012

White Plains, New York

SO ORDERED:

/s/_________

Vincent L. Briccetti

United States District Judge