Opinion
19-CV-7011 (MKB)
2021-02-16
A.W., BY his father and legal guardian, E.W., Plaintiff, v. NEW YORK DEPARTMENT OF EDUCATION, and Aries Baluyot, in his individual and official capacity, Defendants.
Evan Brustein, Brustein Law PLLC, New York, NY, Joshua Tarrant-Windt, Brian L. Bromberg, Bromberg Law Office, P.C., Brooklyn, NY, for Plaintiff. Copatrick Thomas, New York City Law Department, New York, NY, for Defendant New York Department of Education. Douglas G. Rankin, Law Offices of Douglas G. Rankin and Associates, PC, Brooklyn, NY, for Defendant Aries Baluyot.
Evan Brustein, Brustein Law PLLC, New York, NY, Joshua Tarrant-Windt, Brian L. Bromberg, Bromberg Law Office, P.C., Brooklyn, NY, for Plaintiff.
Copatrick Thomas, New York City Law Department, New York, NY, for Defendant New York Department of Education.
Douglas G. Rankin, Law Offices of Douglas G. Rankin and Associates, PC, Brooklyn, NY, for Defendant Aries Baluyot.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
Plaintiff A.W., by his father and legal guardian E.W., commenced the above-captioned action against Defendants the City of New York (the "City"), the New York Department of Education (the "DOE"), and Aries Baluyot on December 13, 2019. (Compl., Docket Entry No. 1.) Plaintiff subsequently amended his pleadings twice, ultimately asserting claims pursuant to 42 U.S.C. § 1983 against Baluyot for unlawful seizure, substantive due process violations, equal protection violations, and excessive force, as well as state law claims for assault, battery, and false imprisonment. (Am. Compl., Docket Entry No. 16; Second Am. Compl. ("SAC"), Docket Entry No. 25.) Plaintiff also asserts that the DOE is liable based on respondeat superior. (See SAC ¶¶ 5, 73–78.)
Plaintiff did not assert any claims against the City of New York in his Amended Complaint or SAC. Accordingly, on March 24, 2020, the Court terminated the City of New York as a party.
The Court understands Plaintiff to assert respondeat superior only as to his state law claims. (See SAC ¶¶ 5, 73–78); Tangreti v. Bachmann , 983 F.3d 609, 616 (2d Cir. 2020) (holding that to find a state official liable under section 1983, "the plaintiff must directly plead and prove that ‘each [g]overnment-official defendant, through the official's own individual actions, has violated the Constitution’ " (quoting Ashcroft v. Iqbal , 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) )); Davis v. N.Y. City Dep't of Corr. , No. 17-CV-3863, 2017 WL 5634123, at *3 n.3 (E.D.N.Y. Nov. 22, 2017) ("[S]ection 1983 does not permit the imposition of liability premised on the theory of respondeat superior ...."); see also Galper v. JP Morgan Chase Bank, N.A. , 802 F.3d 437, 446 n.7 (2d Cir. 2015) ("Under New York law, ‘[t]he doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment.’ " (alteration in original) (quoting RJC Realty Holding Corp. v. Republic Franklin Ins. Co. , 2 N.Y.3d 158, 164, 777 N.Y.S.2d 4, 808 N.E.2d 1263 (2004) )).
Defendant the DOE moves to dismiss Plaintiff's false imprisonment claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and to dismiss Plaintiff's respondeat superior claim for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant argues that the SAC should be dismissed as against the DOE for (1) lack of subject matter jurisdiction as to Plaintiff's false imprisonment claim for failure to file a sufficient notice of claim, (2) failure to state a claim for respondeat superior liability because Baluyot's actions were not taken in the scope of his employment, and (3) failure to state a claim for declaratory relief because Plaintiff does not face a prospective injury. (Def.’s Mem.) For the reasons set forth below, the Court grants Defendant's motion in part and denies it in part.
(Def.’s Mot. to Dismiss ("Def.’s Mot."), Docket Entry No. 31; Def.’s Mem. in Supp. of Def.’s Mot. ("Def.’s Mem."), Docket Entry No. 33.) Plaintiff opposes Defendant's motion. (Pl.’s Mem. in Opp'n to Def.’s Mot. ("Pl.’s Opp'n"), Docket Entry No. 40.) Baluyot has not moved to dismiss the SAC.
I. Background
The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order.
Plaintiff has a developmental disability, an intelligence quotient ("IQ") of 72, and has been diagnosed with autism. (SAC ¶ 16.) Plaintiff's disability "limits his ability to communicate." (Id. ¶ 34.) Plaintiff's father, E.W., has legal guardianship over him pursuant to Article 81 of the New York Mental Hygiene Law. (Id. ¶ 18.) During the period at issue, Plaintiff attended P.S. 721K, a New York City public school "dedicated to educating students with developmental disabilities." (Id. ¶ 19.) At P.S. 721K, school employees were required to be "hands-on in responding to classroom disruptions," including using "physical force to restrain disruptive students" and separating disruptive students from the rest of students. (Id. ¶ 21.) As a result of his disability, Plaintiff "suffers from behavioral problems that cause him to act disruptively in class," which "occasionally requires a school employee to restrain him and separate him from other students." (Id. ¶ 17.) Because his school serves other students with disabilities, Plaintiff was not the only student with behavioral problems "that required the use of physical restraint and separation." (Id. ¶ 20.)
During the period at issue, Baluyot was employed with P.S. 721K as a paraprofessional, providing "educational assistance" to teachers and students at the school. ( Id. ¶ 22.) Baluyot had the authority to "take students out of class and be alone with students" as well as to "use physical force" with disruptive or noncompliant students. (Id. ¶ 23.)
On December 17 and December 18, 2018, at approximately 10:00 AM or 11:00 AM each day, Baluyot pulled Plaintiff out of class and took him to the school basement, which is "outside the view of any security cameras or other school personnel." (Id. ¶ 27.) Plaintiff contends that in the basement, Baluyot beat Plaintiff multiple times with a stick or ruler. (Id. ¶ 28.) Plaintiff was aware he was "confined and unable to leave the basement," and he did not think he could disobey Baluyot because Baluyot was a paraprofessional. (Id. ¶¶ 29–31.) Baluyot's attacks left "large and clearly visible marks along [Plaintiff's] left hip and thigh," which took several weeks to heal and caused Plaintiff "substantial pain." (Id. ¶ 32.) Plaintiff "did not take any action that would justify Baluyot's beating." (Id. ¶ 33.) Plaintiff alleges that Baluyot attacked him because Baluyot knew that Plaintiff has limited ability to communicate and "knew that [he] was vulnerable." (Id. ¶ 34.)
Plaintiff told his father that Baluyot touched him, but his father did not realize "the severity of what had happened" until December 20, 2018, when he "noticed significant bruising on [Plaintiff's] left leg." (Id. ¶ 35.) Plaintiff told his father that Baluyot had beaten him by hitting him with a stick or ruler multiple times that Monday and Tuesday. (Id. ¶ 36.) On the morning of December 21, 2018, Plaintiff's father complained to Barbara Tremblay, the principal of P.S. 721K, about Baluyot's attack on Plaintiff. (Id. ¶ 37.) Tremblay promised to investigate and to return Plaintiff's father's call that afternoon, but she did not. (Id. ¶ 38.) Plaintiff's father decided to file a complaint with the New York Police Department (the "NYPD"). (Id. ¶¶ 38–39.) Upon the NYPD's advice, Plaintiff's father returned to P.S. 721K to call in his complaint from the school. (Id. ¶ 40.) The NYPD arrived at P.S. 721K, interviewed Plaintiff and his father, and presented Plaintiff with "a series of photos of school employees." (Id. ¶¶ 41–42.) Police officers arrested Baluyot at the school. (Id. ¶ 43.) The District Attorney's Office "ultimately provided Baluyot with an adjournment in contemplation of dismissal, wherein the charges against Baluyot relating to this incident would be dismissed so long as he did not re-offend within six months." (Id. ¶ 44.) Baluyot no longer works at P.S. 721K but is still employed by the DOE. (Id. ¶ 45.) Plaintiff contends that his mental health continues to be negatively affected by the incident as he is "still fixated on the attacks and repeatedly mentions it to his father and during appointments with medical professionals." (Id. ¶ 46.)
On March 7, 2019, Plaintiff filed a notice of claim (the "Notice"), with the City of New York. (Id. ¶ 15; Notice of Claim, annexed to Decl. of Copatrick Thomas as Ex. A, Docket Entry No. 32-1.) The Notice identified sixteen claims, exclusive of false imprisonment. (Notice of Claim 2.) Plaintiff states in the Notice that Baluyot hit Plaintiff "multiple times with a wooden stick in the hip and thigh areas, leaving large and clearly visible marks" on or about "December 17, 2018 and December 18, 2018, at 10–11 [AM], approximately, in or about" P.S. 721K. (Id. ) Plaintiff further stated that the hitting was humiliating and caused substantial pain. (Id. )
The Court considers the Notice even though it is outside of the pleadings because a court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. See M.E.S., Inc. v. Snell , 712 F.3d 666, 671 (2d Cir. 2013) ("[U]nder Rule 12(b)(1), we are permitted to rely on non-conclusory, non-hearsay statements outside the pleadings ...."); Romano v. Kazacos , 609 F.3d 512, 520 (2d Cir. 2010).
On December 13, 2019, Plaintiff filed this suit in federal court. (Compl.; SAC.) Plaintiff seeks a declaration that Defendants’ conduct violates the law, compensatory and punitive damages, attorneys’ fees and other costs relating to this action, and any other relief this Court deems just and proper. (SAC 11–12.)
II. Discussion
a. Standards of review
i. Rule 12(b)(1)
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court "lacks the statutory or constitutional power to adjudicate it." Huntress v. United States , 810 F. App'x 74, 75 (2d Cir. 2020) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ); Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L. , 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova , 201 F.3d at 113 ); Shabaj v. Holder , 718 F.3d 48, 50 (2d Cir. 2013) (per curiam) (quoting Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ). " ‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first quoting Nat. Res. Def. Council v. Johnson , 461 F.3d 164, 171 (2d Cir. 2006) ; and then quoting APWU v. Potter , 343 F.3d 619, 623 (2d Cir. 2003) ), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Ultimately, "the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova , 201 F.3d at 113 ); see also Suarez v. Mosaic Sales Sols. US Operating Co. , 720 F. App'x 52, 53 (2d Cir. 2018) (citing Morrison , 547 F.3d at 170 ); Clayton v. United States , No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020) (quoting Tandon , 752 F.3d at 243 ); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon , 369 F. Supp. 3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon , 752 F.3d at 243 ).
ii. Rule 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Kim v. Kimm , 884 F.3d 98, 103 (2d Cir. 2018) (quoting Chambers v. Time Warner Inc. , 282 F.3d 147, 152 (2d Cir. 2002) ); see also Tsirelman v. Daines , 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ. , 131 F.3d 326, 329 (2d Cir. 1997) ). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. b. Notice of false imprisonment claim
In support of dismissal, Defendant argues that the Court does not have jurisdiction over Plaintiff's false imprisonment claim as against the DOE because Plaintiff has failed to provide a sufficient written notice of claim as a "condition precedent to suit" under New York Education Law § 3813(2) and section 50-e of the General Municipal Law. (Def.’s Mem. 5–9.) Defendant argues that Plaintiff's Notice was insufficient because it does not assert any claims for false imprisonment or set forth any facts in support of a false imprisonment claim, such as that Baluyot removed Plaintiff from the classroom and confined him in the school basement. (Id. at 6.) In addition, Defendant contends that because these allegations were first asserted in Plaintiff's Amended Complaint more than one year after the Notice was served, the false imprisonment claim must be dismissed. (Id. at 6–7.) In support of these arguments, Defendant asserts that notice of claim requirements are "strictly construed" and "[a]ny cause of action not directly or indirectly mentioned in the notice of claim may not be included in a subsequent lawsuit." (Id. at 6 (quoting Fincher v. County of Westchester , 979 F. Supp. 989, 1003 (S.D.N.Y. 1997) ).) Defendant contends that to constitute sufficient notice under section 50-e, a notice of claim must "include enough information to enable the municipality to investigate the claim adequately" and the "nature of the claim and the theory of liability are determinative." (Id. at 5–6 (first quoting Alexander v. Westbury Union Free Sch. Dist. , 829 F. Supp. 2d 89, 110 (E.D.N.Y. 2011) ; then quoting Fincher , 979 F. Supp. at 1002 ).)
Plaintiff argues that the Notice was sufficient because it "laid out, in broad strokes, the events of December 17 and 18 [of] 2018." (Pl.’s Opp'n 4.) Although he acknowledges that he "did not specifically include false imprisonment among [the] list of potential causes of action," (id. ), Plaintiff asserts that the City was nevertheless on notice that the claim might be brought because "it provided [the DOE] with sufficient details to conduct an investigation" by pointing to the "time, date, and location of the incident" and asserted that Baluyot hit Plaintiff on school property during school hours, (id. at 5–6). Plaintiff argues that dismissal of a notice of claim is not warranted when a specific cause of action is omitted in the notice of claim. (Id. at 5.) Instead, section 50-e is intended to be applied flexibly and a notice of claim is sufficient if the notice "clearly identifie[s] possible culpable conduct by [the] defendant on a specific date and at a specific location" and provides "information sufficient to enable the [C]ity to investigate." (Id. at 6 (first quoting Fontaine v. City of Amsterdam , 172 A.D.3d 1602, 100 N.Y.S.3d 394, 396 (2019) ; and then quoting Brown v. City of New York , 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 (2000) ).) Plaintiff relies on Lampman v. Cairo Central School District , 47 A.D.2d 794, 366 N.Y.S.2d 237 (1975) to argue that a claim not specified in a notice of claim is "nevertheless permitted when it is ‘closely related in both the pleading and proof of material facts’ to another cause of action that was contained in the [n]otice of [c]laim." (Id. at 7 (quoting Lampman , 47 A.D.2d 794, 366 N.Y.S.2d at 238 ).) In addition, Plaintiff argues that the Notice was sufficient because Plaintiff did not need to mention that the attack took place in the school basement or that Baluyot removed Plaintiff from the classroom since the Notice provides "the time, place, and location of the relevant events." (Id. at 8.)
Where a party is pursuing a tort action against the DOE, section 3813(2) provides that "no action ... founded upon tort shall be prosecuted ... unless a notice of claim shall have been made and served in compliance with" General Municipal Law section 50-e, which provides that notice of claim must be filed "within ninety days after the claim arises." N.Y. Educ. Law § 3813(2) ; see also N.Y. Gen. Mun. Law § 50-e ; Miranda v. S. Country Cent. Sch. Dist. , 461 F. Supp. 3d 17, 30 (E.D.N.Y. 2020), reconsideration denied , No. 20-CV-104, 2020 WL 4287165 (E.D.N.Y. July 27, 2020) (permitting claim to continue because the notice of claim requirement under section 3813 was satisfied); see also Cardo v. Arlington Cent. Sch. Dist. , 473 F. App'x 21, 24 (2d Cir. 2012) (affirming dismissal of state-law defamation claim against a school district pursuant to section 3813(2) ); Grantley v. City of New York , No. 12-CV-8294, 2013 WL 6139688, at *3 (S.D.N.Y. Nov. 21, 2013) ("Under New York law, a plaintiff asserting state law tort claims against New York municipal entities or their employees acting within the scope of their employment must file a notice of claim within ninety days of the incident giving rise to the claim." (citing N.Y. Gen. Mun. Law §§ 50–e, 50-i )).
Notice under section 50-e "shall set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed." N.Y. Gen. Mun. Law § 50-e(2) ; see also Clark v. N.Y.C. Hous. Auth. , ––– F. Supp. 3d ––––, ––––, 2021 WL 202998, at *2 (S.D.N.Y. Jan. 21, 2021) ("The notice of claim must set forth ‘the nature of the claim’ and ‘the time when, the place where and the manner in which the claim arose,’ among other things." (quoting N.Y. Gen. Mun. Law § 50-e(2) )). To determine whether a notice is sufficient under General Municipal Law section 50-e(2), the New York Court of Appeals has instructed that "courts should focus on whether the notice of claim included information sufficient to enable the municipal defendant to investigate the claim and whether, based on the claimant's description, municipal authorities could locate the place, fix the time, and understand the nature of the accident." Hudson v. N.Y.C. Transit Auth. , 19 A.D.3d 648, 798 N.Y.S.2d 105, 106 (2005) ; Brown , 95 N.Y.2d at 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 (2000) ; see also Miranda , 461 F. Supp. 3d at 29 (quoting Hudson , 19 A.D.3d 648, 798 N.Y.S.2d at 105 ). The requirement of section 50-e need not be "stated with literal nicety or exactness," and the question is simply whether the notice includes "information sufficient to enable the city to investigate." Parise v. N.Y.C. Dep't of Sanitation , 306 F. App'x 695, 697 (2d Cir. 2009) ; see also Rentas v. Ruffin , 816 F.3d 214, 227 (2d Cir. 2016) ("Although the notice must set forth ‘the nature of the claim,’ it need not ‘state a precise cause of action in haec verba. ’ " (citation omitted) (first quoting N.Y. Gen. Mun. Law § 50-e ; and then quoting DeLeonibus v. Scognamillo , 183 A.D.2d 697, 583 N.Y.S.2d 285, 286 (1992) )). "[T]he ‘plain purpose’ of statutes requiring pre-litigation notice to municipalities ‘is to guard them against imposition by requiring notice of the circumstances ... upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the case is one for settlement or litigation.’ " Rosenbaum v. City of New York , 8 N.Y.3d 1, 11, 828 N.Y.S.2d 228, 861 N.E.2d 43 (2006) (quoting Purdy v. City of New York , 193 N.Y. 521, 523, 86 N.E. 560 (1908) ).
Plaintiff's Notice did not provide sufficient notice of the false imprisonment claim because Plaintiff did not set forth any facts from which the DOE could investigate that claim. Although the Notice stated that Baluyot hit Plaintiff "multiple times with a wooden stick in the hip and thigh areas, leaving large and clearly visible marks" on or about "December 17, 2018 and December 18, 2018, at 10–11 [AM], approximately, in or about" P.S. 721K, the Notice neither stated nor implied that Baluyot removed Plaintiff from the classroom, took him to the basement of the school, and confined him in the basement. (Notice of Claim 2.) The Notice only contains facts pertaining to Baluyot's physical attack on Plaintiff; it does not include facts that would alert Defendant of claims regarding false imprisonment. See, e.g. , Canete v. Metro. Transp. Auth. , No. 17-CV-3961, 2018 WL 4538897, at *9 (S.D.N.Y. Sept. 20, 2018) ("The fact that these alleged causes of action arose out of the same incident is not pivotal; rather, the nature of the claim and the theory of liability are determinative.") (quoting Wanczowski v. City of New York , 186 A.D.2d 397, 588 N.Y.S.2d 1011, 1011 (1992) ); Davis v. City of New York , 153 A.D.3d 658, 61 N.Y.S.3d 551, 555 (2017) ("[T]he notice of claim was limited to allegations that the police officers involved in the decedent's arrest failed to obtain timely medical assistance ..., and that the hospital staff negligently treated the decedent. There were no allegations, either express or implied, that the police had assaulted the decedent...."); O'Dell v. County of Livingston , 174 A.D.3d 1307, 103 N.Y.S.3d 730, 732–33 (2019) (finding notice of claim insufficient when "in his notice of claim plaintiff set forth a claim against the [defendant] for false arrest, but ... failed to assert a claim for malicious prosecution against the [defendant] and failed to assert any of the additional theories of liability that were raised in the complaint"); Vaynshelbaum v. City of New York , 140 A.D.3d 406, 33 N.Y.S.3d 37, 38 (2016) (finding that notice of claim did not provide adequate notice of, inter alia , false imprisonment claim solely by providing notice of time, place, and nature of battery claim); Scott v. City of New York , 40 A.D.3d 408, 836 N.Y.S.2d 140, 142 (2007) ("Plaintiff's notice of claim was limited to allegations of assaultive conduct by the [defendants] and their use of excessive force. There were no allegations, either express or implied, supporting the newly raised causes of action for false arrest and malicious prosecution."); Garcia v. O'Keefe , 34 A.D.3d 334, 825 N.Y.S.2d 38, 39 (2006) ("[F]alse arrest is not listed as a theory of liability in plaintiff's notice of claim and we conclude it cannot be inferred from plaintiff's general assertions of ‘negligence, carelessness and recklessness,’ or from her claims of wrongful death and assault and battery."); Mojica v. N.Y.C. Transit Auth. , 117 A.D.2d 722, 498 N.Y.S.2d 448, 449 (1986) (finding notice of claim insufficient as to plaintiff's false imprisonment and malicious prosecution claims because "[t]he information contained in the notice of claim merely alerted the defendant ... to the fact that the plaintiff was physically injured during an altercation with one of its police officers and that he intended to seek compensation for those injuries" and "[n]owhere in the notice was there mention of the fact that the plaintiff was detained and arrested"); cf. Clark v. City of Ithaca , 235 A.D.2d 746, 652 N.Y.S.2d 819, 821 (1997) (finding that notice of claim was sufficient as to false arrest claim when "the notice of claim state[d] that [defendant] falsely arrested plaintiff and violated her civil rights").
Plaintiff contends that Fincher v. County of Westchester , 979 F. Supp. 989 (S.D.N.Y. 1997), cited by Defendant, is inapposite because the omitted claims in Fincher of improper hiring, training, and supervision "necessarily involve conduct that occurred prior to the event that caused the plaintiff's injuries," unlike Plaintiff's claim for false imprisonment, which "occurred at the same time, and through the same conduct[ ] as his other claims." (Pl.’s Opp'n 8–9.) Plaintiff argues that because omission of the false imprisonment claim "would not have caused [the DOE] to miss the facts that also support the false imprisonment claim," the Notice satisfied section 50-e and the Court has jurisdiction. (Id. at 9.) Because New York courts have found that notice of facts pertaining to assault and battery claims are insufficient to support notice of false imprisonment claims, see Vaynshelbaum v. City of New York , 140 A.D.3d 406, 33 N.Y.S.3d 37, 38 (2016) ; Scott v. City of New York , 40 A.D.3d 408, 836 N.Y.S.2d 140, 142 (2007) ; Garcia v. O'Keefe , 34 A.D.3d 334, 825 N.Y.S.2d 38, 39 (2006) ; Mojica v. N.Y.C. Transit Auth. , 117 A.D.2d 722, 498 N.Y.S.2d 448, 449 (1986), the Court need not rely on Fincher to conclude that Plaintiff's notice is insufficient.
Plaintiff's reliance on Fontaine , 100 N.Y.S.3d at 394 is unpersuasive. In Fontaine , the plaintiff asserted claims for false arrest, false imprisonment, battery, excessive use of force, and "intentional neglect of medical needs." 100 N.Y.S.3d at 395. The court held that the plaintiff's claims for false imprisonment, false arrest, battery, and intentional neglect of medical needs were not barred despite not being asserted in the notice of claim because the notice "clearly identified possible culpable conduct conducted by defendant on a specific date and at a specific location." Id., 100 N.Y.S.3d at 396. Specifically, the plaintiff alleged that on a certain date, she "sustained personal injuries, pain and suffering[,] and emotional distress as a result of an incident" at the Amsterdam Police precinct during which she was "restrained by excessive force." Id. The court found that the plaintiff had provided "sufficient information to alert [the] defendant that [the] plaintiff had potential causes of action for false arrest, false imprisonment, battery[,] and intentional neglect of medical needs and[ ] thereby[ ] afforded defendant an ample opportunity to investigate." Id. , 100 N.Y.S.3d at 396–97. Unlike in Fontaine , Plaintiff did not allege that he was restrained or confined or even that he was removed from the classroom. (See Notice of Claim.) Because Plaintiff only alleged facts relating to his assault and battery and there were no allegations, either express or implied, regarding Plaintiff's confinement, the DOE did not have adequate notice to investigate this claim. See Vaynshelbaum , 140 A.D.3d 406, 33 N.Y.S.3d at 38 ; Scott , 40 A.D.3d 408, 836 N.Y.S.2d at 142.
Accordingly, the Court dismisses without prejudice Plaintiff's false imprisonment claim as against the DOE for lack of jurisdiction due to insufficient notice under section 50-e. See Hardy v. N.Y.C. Health & Hosps. Corp. , 164 F.3d 789, 793–94 (2d Cir. 1999) ("Notice of claim requirements are construed strictly" and "[f]ailure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action."); Szewczyk v. City of New York , No. 17-CV-1884, 2018 WL 4688946, at *11 (E.D.N.Y. Sept. 28, 2018) ("Failure to comply with [notice of claim] requirements ordinarily requires a dismissal for failure to state a cause of action."); Bertuzzi v. Copiague Union Free Sch. Dist. , No. 17-CV-4256, 2020 WL 5899949, at *19 (E.D.N.Y. Mar. 9, 2020) ("[ Section] 3813 ’s notice of claim provisions are jurisdictional in nature, and a plaintiff's failure to timely comply precludes an action."), report and recommendation adopted as modified , 2020 WL 3989493 (E.D.N.Y. July 15, 2020).
Pursuant to General Municipal law section 50-e(6) :
At any time after the service of a notice of claim ..., a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section ... may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.
N.Y. Gen. Mun. Law § 50-e(6). However, the Second Circuit has noted that it is an open question "whether a federal court has jurisdiction to correct or disregard a defective notice of claim pursuant to [s]ection 50-e(6)." Parise v. N.Y.C. Dep't of Sanitation , 306 F. App'x 695, 697 n.2 (2d Cir. 2009). Regardless, any such application is defective because adding the false imprisonment claim would constitute a "substantive change[ ] in the theory of liability," and section 50-6(e) "merely permits correction of good faith, non-prejudicial, technical mistakes, defects or omissions." Mahase v. Manhattan & Bronx Surface Transit Operating Auth. , 3 A.D.3d 410, 771 N.Y.S.2d 99, 101 (2004) ; see also Parise , 306 F. App'x at 698 ; Demosthene v. City of New York , No. 18-CV-1358, 2019 WL 8165003, at *2 (E.D.N.Y. Feb. 8, 2019) ("[W]hile New York's rules authorize amendments to the notice of claim form when a mistake or omission was made in good faith, an amendment would be improper here, as it would ‘substantively alter the nature of [plaintiff's] claim and would be prejudicial’ to defendants." (second alteration in original) (citation omitted) (quoting Abrahamson v. Gates at Melville, LLC , 278 A.D.2d 186, 717 N.Y.S.2d 245, 246 (2000) )); Tyrrell v. Seaford Union Free Sch. Dist. , 792 F. Supp. 2d 601, 637 (E.D.N.Y. 2011) (quoting Mahase , 771 N.Y.S.2d at 101 ).
c. Plaintiff plausibly alleges that Baluyot acted within the scope of his employment
Defendant argues that Plaintiff failed to allege that Baluyot acted within the scope of his employment as to Plaintiff's underlying assault and battery claims because taking Plaintiff to the school basement and beating the student is not "a foreseeable and natural incident of employment." (Def.’s Mem. 9–10 (quoting Schilt v. N.Y.C. Transit Auth. , 304 A.D.2d 189, 193, 759 N.Y.S.2d 10 (2003) ).) In support, Defendant argues that the facts alleged by Plaintiff do not satisfy the five-factor test set forth by the Court of Appeals in Riviello to determine when an employer is liable for the torts of its employees because (1) Plaintiff makes no contentions that Baluyot has a history of acting outside the scope of his employment, (2) the alleged conduct is not "commonly done" by a paraprofessional, (3) Baluyot's conduct represents a significant "departure from normal methods of performance," and (4) Plaintiff does not allege that Baluyot had the authority or was expected to "take students to remote and unmonitored locations where he would hold them against their will for an extended period. (Id. (citing Riviello v. Waldron , 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979) ); Def.’s Reply in Supp. of Def.’s Mot. ("Def.’s Reply") 11–12, Docket Entry No. 41.) Defendant argues that because Plaintiff alleges that Baluyot's actions were "unprovoked" and "not part of any disciplinary goal," Plaintiff fails to allege that Baluyot was acting in the scope of his employment and "therefore fails to allege a basis for vicarious liability as against [the] DOE." (Def.’s Mem. 10–11.)
Defendant also argues that Baluyot did not act in the scope of his employment as to Plaintiff's underlying false imprisonment claim. (See Def.’s Mem. 9.) Because, as discussed above, the Court does not have jurisdiction over Plaintiff's false imprisonment claim as asserted against the DOE, the Court only assesses whether Baluyot acted in the scope of employment with respect to Plaintiff's assault and battery claims against the DOE.
In response, Plaintiff makes two arguments. First, Plaintiff asserts that Defendant's motion is premature because respondeat superior "is a question of fact to be resolved by a jury" and Defendant inserts facts not found in the SAC to ask the Court to draw inferences in its favor. (Pl.’s Opp'n 9.) Plaintiff contends that Defendant asks the Court to infer that Baluyot's attack "must have been motivated by personal reasons," but this conclusion should not be inferred on a motion to dismiss. (Id. at 10.) Next, Plaintiff argues that the SAC adequately alleges that Baluyot was acting in the scope of his employment when he attacked Plaintiff. (Id. ) In support, Plaintiff argues that it has satisfied the Riviello test because (1) the attack took place "on school property during school hours," (2) Baluyot was authorized to use force against students, (3) Baluyot used force "occasionally against Plaintiff and other students," (4) the difference between Baluyot's conduct and permissible force "is one of degree rather than kind," and (5) Baluyot's attacks were a general "foreseeable consequence" of the authority vested in him. (Id. at 11 (citing Riviello , 47 N.Y.2d at 302–04, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ).)
In New York, "an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." N.X. v. Cabrini Med. Ctr. , 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 (2002) (citing Riviello , 47 N.Y.2d at 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ); see Rivera v. State of New York , 34 N.Y.3d 383, 389, 142 N.E.3d 641 (2019) ("Under the common-law doctrine of respondeat superior , an employer — including the State — may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment." (quoting Judith M. v. Sisters of Charity Hosp. , 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 (1999) )); see also Turley v. ISG Lackawanna, Inc. , 774 F.3d 140, 161 (2d Cir. 2014) (citing Riviello , 47 N.Y.2d at 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ). This doctrine applies both to intentional torts and to negligence, "so long as the tortious conduct is generally foreseeable and a natural incident of the employment." Judith M. , 93 N.Y.2d at 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 (citing Riviello , 47 N.Y.2d at 304, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ); see also Rivera , 34 N.Y.3d at 389, 142 N.E.3d 641 ("[T]he employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment." (quoting Judith M. , 93 N.Y.2d at 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 )); Shahid v. Legal Aid Soc'y , 173 A.D.3d 1099, 100 N.Y.S.3d 874, 875 (2019) ("Pursuant to the doctrine of respondeat superior , an employer is vicariously liable for torts committed by an employee within the scope of employment and in [further support] of the employer's business" (alteration in original) (quoting Nerey v. Greenpoint Mortg. Funding, Inc. , 116 A.D.3d 1015, 985 N.Y.S.2d 252, 254 (2014) )); Carnegie v. J.P. Phillips, Inc. , 28 A.D.3d 599, 815 N.Y.S.2d 107, 108–09 (2006).
An employer will not be responsible for the torts of an employee who is not acting in furtherance of his employer's business or who acts only on personal motives. See N.X. , 97 N.Y.2d at 251–52, 739 N.Y.S.2d 348, 765 N.E.2d 844 (holding that hospital resident's sexual assault of patient was outside the scope of employment); Judith M. , 93 N.Y.2d at 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 (holding that hospital orderly's sexual assault of patient was outside the scope of employment); Adams v. N.Y.C. Transit Auth. , 88 N.Y.2d 116, 119, 123, 643 N.Y.S.2d 511, 666 N.E.2d 216 (1996) (dismissing action against transit authority defendant, finding that employee who assaulted plaintiff was not acting within the scope of her employment); Naegele v. Archdiocese of N.Y. , 39 A.D.3d 270, 833 N.Y.S.2d 79, 80 (2007) (dismissing breach of fiduciary duty and undue influence claims sounding in respondeat superior against defendant, finding it was not liable for tortious acts of the monsignor because the "conduct, which may be characterized as exercising undue influence, overreaching, fraud or even theft, was not in furtherance of archdiocesan business and was a clear departure from the scope of his employment, having been committed for wholly personal motives"); see also Turley , 774 F.3d at 161 ("Because it is usually motivated by something personal, harassment, however egregious, ordinarily does not fall within the scope of employment.").
Factors relevant to a determination of whether an employee's acts fall within the scope of employment include:
the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated.
Burlarley v. Wal-Mart Stores, Inc. , 75 A.D.3d 955, 904 N.Y.S.2d 826, 827 (2010) (quoting Riviello , 47 N.Y.2d at 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ); see also Agyin v. Razmzan , 986 F.3d 168, 185-86 (2d Cir. 2021) (citing to the Riviello factors and stating that "[a]n employee must also act at least ‘in part to benefit the employer’ " (quoting Sharkey v. Lasmo (AUL Ltd.) , 992 F. Supp. 321, 329 (S.D.N.Y. 1998) )). Whether an employee was acting within the scope of his employment is a fact-dependent inquiry typically left to the jury. See Golodner v. Quessant Inc. , No. 05-CV-7895, 2007 WL 2844944, at *4 (S.D.N.Y. Sept. 27, 2007) ; 106 N. Broadway, LLC v. Lawrence , 189 A.D.3d 733, 137 N.Y.S.3d 148, 156-57 (2020) ("[W]hether an act of an employee is within the scope of employment is generally a jury question.").
Plaintiff has plausibly alleged that Baluyot was acting within the scope of his employment. Plaintiff alleged that Baluyot was on duty as a paraprofessional and the alleged assault and battery occurred at P.S. 721K — in satisfaction of the first factor as to time, place, and occasion. The second factor — the history of the relationship between employer and employee as spelled out in actual practice — is unenlightening as Plaintiff does not provide any employment history for Baluyot or allege that Baluyot has a history of acting outside the scope of his employment. See, e.g. , Tomscha v. Poole , No. 16-CV-1263, 2016 WL 7378974, at *7 (S.D.N.Y. Dec. 20, 2016) ("[The defendants] are not employees frequently disciplined for acting against their employer's will, but rather employees whose professional histories lack any instances of improper action outside the scope of their employment."); Maldonado v. Colon , No. 97-CV-3966, 1998 WL 240479, at *4 (S.D.N.Y. May 12, 1998) (finding that second Riviello factor weighed in favor of scope of employment when employment history was available and "[t]here is no indication defendant had a practice of acting outside the scope of his employment").
The third factor — whether the act is one commonly done by such an employee — weighs in Plaintiff's favor. Plaintiff alleged that DOE professionals supervising students with disabilities "may use physical force against that student" and that there were multiple students at the school who "required the use of physical restraint and separation." (See SAC ¶¶ 20–21, 25.) New York courts have recognized that disciplining students is a "normal and customary part of ... [a teacher's] employment." Cromer v. City Sch. Dist. of Albany Bd. of Educ. , No. 01-02068683, 2002 WL 1174683, at *2 (N.Y. Sup. Ct. Apr. 5, 2002). Although Defendant argues that Baluyot's actions could not be common among paraprofessionals because he did not act within the bounds of conduct authorized by the relevant DOE regulations, (Def.’s Mem. 10; Def.’s Reply 8–10), the New York Court of Appeals has acknowledged in at least one case that whether "an employee's use of corporal punishment violated regulations" does not necessarily mean that an employee's actions were outside the scope of employment. Sagal-Cotler v. Bd. of Educ. of City Sch. Dist. of City of N.Y. , 20 N.Y.3d 671, 676, 965 N.Y.S.2d 767, 988 N.E.2d 502 (2013) ; see also K.R. ex rel. Perez v. Silverman , No. 08-CV-2192, 2009 WL 2959580, at *5 (E.D.N.Y. Aug. 13, 2009) ("[A] contention that a defendant's actions were wrongful is insufficient to establish that the actions were outside of the defendant's scope of employment."). Accordingly, at this stage of the litigation, the Court accepts as true Plaintiff's allegations that staff at Plaintiff's school routinely use force to restrain and discipline disruptive students.
The Court acknowledges that the Court of Appeals’ decision in Sagal-Cotler concerned whether section 3028 of the Education Law required New York City to provide legal defense when its employees violated the City's regulations on corporal punishment. 20 N.Y.3d 671, 671, 965 N.Y.S.2d 767, 988 N.E.2d 502 (2013). In that case, two paraprofessionals were sued by students who alleged that the paraprofessionals hit them. Id. One paraprofessional "slapped a student in the face after he refused three times to go with her to the cafeteria." Id. at 674, 965 N.Y.S.2d 767, 988 N.E.2d 502. The other hit a student "on the head when the child did not do his work properly." Id. The parties did not dispute that the actions were taken "while in the discharge of [their] duties within the scope of [their] employment." Id. at 675, 965 N.Y.S.2d 767, 988 N.E.2d 502 (alterations in original). Although the central issue concerned interpretation of section 3028 of the Education Law, the court stated that "scope of employment" as defined and used in Riviello was interchangeable with "discharge of duties" as written in section 3028. Id. Accordingly, the court's pronouncement that discharge of duties under section 3028 is not restricted to "cases where an employee acted in the proper and lawful discharge of his or her duties," id. , is relevant to the interpretation and understanding of the scope of employment inquiry under Riviello .
The fourth factor — the extent of departure from normal methods of performance — weighs in Defendant's favor. While Baluyot worked as a paraprofessional and Plaintiff alleged that paraprofessionals were authorized to use force while supervising students with disabilities, Plaintiff also stated that Plaintiff "did not take any action that would justify Baluyot's beating" and that "[t]hese beatings were not reasonably related to any disciplinary goal." (SAC ¶¶ 32–33). The cases cited by Plaintiff in support of his contention that Baluyot acted in the scope of his employment demonstrate that Baluyot's actions were a departure from the normal methods of performance because in those cases, force was used as a method of discipline. For example, in Cromer , the court found that a physical education teacher acted within the scope of employment when he grabbed and physically moved a student who was not listening to his instructions because the teacher was disciplining the student. 2002 WL 1174683, at *2. Similarly, in Inglis v. Dundee Central School District Board of Education , the court found that a music teacher who slapped a student once across the face acted within the scope of employment because "discipline of students is a normal and customary part of her employment" and "the extent of departure from performing that employment was not a dramatic one." 180 Misc.2d 156, 687 N.Y.S.2d 866, 868 (Sup. Ct. 1999). Accepting the facts alleged in the SAC as true, as the Court must at this stage of the litigation, Baluyot removed Plaintiff from his classroom, took him to the basement, and beat him with a stick or ruler multiple times. (SAC ¶¶ 27–28.) By Plaintiff's own statement, Plaintiff "did not take any action that would justify Baluyot's beating"; nor were the beatings "reasonably related to any disciplinary goal." (Id. ¶¶ 27–29, 33.) Unlike in Cromer and Inglis , there are no allegations in the SAC that suggest that Baluyot was acting to discipline or control a disruptive student. Accordingly, Baluyot's actions were likely a significant departure from the normal methods of performance.
The fifth factor — general foreseeability — weighs in Plaintiff's favor. New York courts have held that infliction of physical punishment by a teacher or school staff is within the bounds of general foreseeability. See Zampieron v. Bd. of Educ. of City Sch. Dist. of City of N.Y. , 958 N.Y.S.2d 649, 2010 WL 5576190, at *3 (Sup. Ct. 2010) (unpublished table decision) ("It was foreseeable that in the course of petitioner's duties, he may have needed to take disciplinary action against a student, and the discipline of a student is a normal, customary part of a pedagogical employee's employment."); Cromer , 2002 WL 1174683, at *2 (finding that a physical education teacher acted within the scope of employment when he grabbed and physically moved a student who was not listening to his instructions); Inglis , 687 N.Y.S.2d at 868 (finding that that a music teacher who slapped a student once across the face acted within the scope of employment because "discipline of students is a normal and customary part of her employment"); see also Robles v. Medisys Health Network, Inc. , No. 19-CV-6651, 2020 WL 3403191, at *21 (E.D.N.Y. June 19, 2020) ("When the employee's act was foreseeable, the employer can be liable as long as the employee acted while the employee was ‘doing his [employer's] work, no matter how irregularly, or with what disregard of instructions.’ " (alteration in original) (quoting Pizzuto v. County of Nassau , 239 F. Supp. 2d 301, 313 (E.D.N.Y. 2003) )); Capak v. Epps , No. 18-CV-4325, 2020 WL 3073210, at *9 (S.D.N.Y. June 10, 2020) ("[W]hile it is not necessary that the precise type of injury caused by the employee's act be foreseeable, it is necessary that the conduct is, in a general sense, reasonably foreseeable." (quoting Dykes v. McRoberts Protective Agency, Inc. , 256 A.D.2d 2, 680 N.Y.S.2d 513, 514 (1998) )).
Because three of five Riviello factors weigh in Plaintiff's favor, the Court finds that Plaintiff has alleged sufficient facts that, if true, could result in the DOE being held vicariously liable for Baluyot's actions. The Court declines to find as a matter of law, at this stage of the litigation, that Baluyot's conduct was outside the scope of employment. See Robles , 2020 WL 3403191, at *21 ("[T]he assessment of whether an employee acted within the scope of employment ‘is heavily dependent on factual considerations and is therefore ordinarily a question for the jury ....’ " (quoting Rounds v. Del., Lackawanna & W. R.R. Co. , 64 N.Y. 129, 137–38 (1876) )); White v. Montesano , 466 F. Supp. 3d 331, 336 (W.D.N.Y. 2020) (applying the Riviello factors and declining to dismiss respondeat superior claims when there are questions of fact as to whether police officer defendants acted pursuant to their investigatory powers).
Accordingly, Defendant's motion to dismiss the respondeat superior claims premised on the underlying assault and battery claims is denied.
d. Plaintiff is not entitled to declaratory relief
Defendant argues that Plaintiff is not entitled to declaratory relief because such relief is not available for past conduct. (Def.’s Mem. 12 (citing H.B. v. Byram Hills Cent. Sch. Dist. , 648 F. App'x 122, 125 (2d Cir. 2016) ).) In support, Defendant argues that because Plaintiff seeks declaratory relief "in the form of a judgment declaring that Defendants’ past conduct ‘violates Plaintiffs’ rights under the United States Constitution and state law,’ " such relief is foreclosed by the Second Circuit's holding in H.B. (Id. )
In response, Plaintiff argues that the bar on declaratory relief is "only relevant where other remedies are not available and plaintiff's only recourse is a declaration that past conduct was unlawful." (Pl.’s Opp'n 17.) Plaintiff argues that its requested relief is available because he "do[es] not seek declaratory relief as a remedy separate and apart from money damages" and because a declaration that Defendants violated the law is "a necessary precondition to obtaining the requested damages rather than an end in its own right." (Id. )
To show Article III standing, a plaintiff must establish three things, one of which is "injury in fact — an invasion of a legally protected interest which is ... concrete and particularized and ... actual or imminent, not ‘conjectural’ or ‘hypothetical.’ " Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas , 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1992) ). "To obtain prospective relief, such as a declaratory judgment or an injunction, a plaintiff must show, inter alia, ‘a sufficient likelihood that he [or she] will again be wronged in a similar way.’ " H.B. , 648 F. App'x at 125 (quoting Marcavage v. City of New York , 689 F.3d 98, 103 (2d Cir. 2012) ); Dorce v. City of New York , 460 F. Supp. 3d 327, 342 (S.D.N.Y. 2020) ("A plaintiff may not seek declaratory relief aimed at past conduct." (citing H.B. , 648 F. App'x at 125 )). "That is, a plaintiff must demonstrate a certainly impending future injury." H.B. , 648 F. App'x at 125 (quoting Marcavage , 689 F.3d at 103 ); James v. Am. Airlines, Inc. , 247 F. Supp. 3d 297, 305 (E.D.N.Y. 2017) ("To show standing for prospective relief, a plaintiff must plead and prove a ‘real and immediate threat of repeated injury.’ " (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) )).
Plaintiff does not have standing to seek prospective declaratory relief to the extent he seeks to do so because his allegations are limited to Baluyot's past conduct. Plaintiff does not allege "a certainly impending future injury" as required for prospective declaratory relief and, to the contrary, alleged that "Baluyot no longer works at P.S. 721K." (SAC ¶ 45); see H.B. , 648 F. App'x at 125 ; Ward v. Thomas , 207 F.3d 114, 120 (2d Cir. 2000) (finding declaratory relief unavailable because "[a]ny declaration could say no more than that [the state] had violated federal law in the past"). Accordingly, Plaintiff may not seek prospective declaratory relief.
III. Conclusion
For the foregoing reasons, the Court grants Defendant's motion in part and denies it in part. The Court grants Defendant's motion to dismiss the false imprisonment claim as against the DOE. The Court also grants Defendant's motion as to Plaintiff's claim for declaratory relief to the extent that Plaintiff seeks a prospective declaratory judgment. The Court denies Defendant's motion to dismiss the respondeat superior claims as against the DOE premised on Plaintiff's underlying assault and battery claims.
SO ORDERED.