Vendouri v. Gaylord, et al.

2010 DNH 155

• Court: District Court, D. New Hampshire
• Decided: August 27, 2010
• Docket: 10-CV-277-SM
• Status: Published

Opinion

Vendouri v . Gaylord, et a l . 10-CV-277-SM 08/27/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Emmanouella Vendouri, Plaintiff

v. Civil N o . 10-cv-277-SM Opinion N o . 2010 DNH 155 James F. Gaylord, Randal Zito Linda Evans, Winnacunnet Cooperative School District, and Nick Birmbas, Defendants

O R D E R

This suit has been removed from the New Hampshire Superior

Court. Emmanouella Vendouri, the noncustodial parent of Y.B.,

seeks injunctive relief against, and damages from, the

Winnacunnet Cooperative School District, three school

administrators,1 and her ex-husband (Nick Birmbas). She claims

that defendants deprived her of parental rights guaranteed by the

Fifth and Fourteenth Amendments to the United States Constitution

and Part I , Article 2 of the New Hampshire Constitution, by

failing to notify her on those occasions when her son, Y.B., was

either suspended from school for fighting, or dismissed from

school due to illness. She also claims her rights were violated

when a member of her son’s IEP team exchanged confidential

1 Hereinafter, James Gaylord, Randal Zito, Linda Evans, and the School District will be referred to collectively as “the school defendants.” medical information with her son’s physician without her

authorization and against her wishes. Before the court is a

motion to dismiss filed by the school defendants. Vendouri

objects. For the reasons given, the school defendants’ motion to

dismiss is granted, and Vendouri’s claim against Birmbas is

dismissed sua sponte.

The Legal Standard

A motion to dismiss for “failure to state a claim upon which

relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the

court to conduct a limited inquiry, focusing not on “whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v .

Rhodes, 416 U . S . 232, 236 (1974). That i s , the complaint “must

contain ‘enough facts to raise a reasonable expectation that

discovery will reveal evidence’ supporting the claims.” Fantini

v . Salem State Coll., 557 F.3d 2 2 , 26 (1st Cir. 2009) (quoting

Bell Atl. Corp. v . Twombly, 550 U . S . 544, 556 (2007)).

When considering a motion to dismiss under Rule 12(b)(6), a

trial court “assume[s] the truth of all well-plead facts and

give[s] the plaintiff[s] the benefit of all reasonable inferences

therefrom.” Vernet v . Serrano-Torres, 566 F.3d 254, 258 (1st

Cir. 2009) (quoting Ruiz v . Bally Total Fitness Holding Corp.,

2 496 F.3d 1 , 5 (1st Cir. 2007)). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.”

Sutliffe v . Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009)

(quoting Ashcroft v . Iqbal, 129 S . C t . 1937, 1949 (2009)). On

the other hand, a Rule 12(b)(6) motion should be granted if “the

facts, evaluated in [a] plaintiff-friendly manner, [do not]

contain enough meat to support a reasonable expectation that an

actionable claim may exist.” Andrew Robinson Int’l, Inc. v .

Hartford Fire Ins. Co., 547 F.3d 4 8 , 51 (1st Cir. 2008)

(citations omitted).

Background

Vendouri and Birmbas were divorced in 2005. They are the

parents of Y.B., a student at Winnacunnet High School (“WHS”).

Pursuant to a court order issued by the Portsmouth Family

Division, Birmbas has “primary residential responsibility” for

Y.B. (See Defs.’ Mot. to Dismiss, Ex. B , at 2.) A subsequent

court order, dated January 1 1 , 2010, provides: “[W]ithin 5 days,

[Vendouri and Birmbas] shall both contact [Y.B.]’s high school to

direct that the school call father and mother in the event of an

emergency o r , if the school will call only one, that father list

mother and mother list father as the first contacts in the event

3 either cannot be reached.” (Defs.’ Mot. to Dismiss, Ex. A , at

2.)

At the start of the 2009-10 school year, Vendouri filed an

emergency information card with WHS asking the school to notify

both her and Birmbas in the event of illness or an emergency

involving Y.B. On several occasions during the course of the

school year, various WHS administrators assured Vendouri that she

would be notified if Y.B. fell ill or was involved in an

emergency. On February 1 5 , 2010, WHS Principal Randal Zito told

Vendouri that Birmbas had asked him not to contact her in case of

illness or emergency.

In October, Y.B. was suspended for fighting with another

student, but the school did not notify Vendouri. Seven times

during the school year, WHS officials dismissed Y.B. due to

illness, but did not notify Vendouri.

In May of 2010, during an IEP meeting, Vendouri refused to

sign a release that would allow WHS officials to obtain

confidential medical records from Y.B.’s physician. At some

point, she told the school not to contact Y.B.’s medical

providers. At a subsequent IEP meeting, Vendouri provided Y.B.’s

IEP team with a report from Y.B.’s physician, recommending, among

4 other things, a special diet and an exercise program.

Thereafter, school officials contacted Y.B.’s physician and

exchanged confidential medical information with her. During a

June 2010 meeting with Y.B.’s physician, Vendouri learned that

Birmbas had executed a release allowing Y.B.’s physician to

exchange medical information with WHS officials, and that Birmbas

had told Y.B.’s physician that an additional release from

Vendouri was not necessary.

Based upon the foregoing, Vendouri sued the school

defendants, under the provisions of 42 U.S.C. § 1983, claiming

that they deprived her of her fundamental right to parent her

son, as guaranteed by the Fifth and Fourteenth Amendments to the

United States Constitution. She also claims that the school

defendants, along with her ex-husband, violated her rights under

Part I , Article 2 of the New Hampshire constitution. The school

defendants argue, and Vendouri does not dispute, that the federal

and state constitutions provide identical protections.

Discussion

The school defendants move for summary judgment. They argue

that neither the federal nor the state constitution guarantees

Vendouri the right to be notified when her son is released from

school to Birmbas, and that to the extent the individual

5 defendants have been sued in their individual capacities, they

are entitled to qualified immunity. They also contend, albeit

briefly, that Vendouri fails to state a cognizable claim based

upon their exchange of medical information with Y.B.’s medical

providers, given that Birmbas, Y.B.’s custodial parent, expressly

authorized such an exchange of information. Vendouri responds by

characterizing this case as being “about a mother’s

constitutional right to participate meaningfully in the

upbringing of her minor son.” (Pl.’s O b j . (document n o . 1 2 - 1 ) ,

at 1.) The main issue, in her view, “is whether the School

Defendants . . . may effectively terminate a noncustodial

mother’s parental rights, through measures that deprive her

altogether from the most important right to participate in the

care and management of her son.” (Id.) She relies on James v .

Rowlands, 606 F.3d 646 (9th Cir. 2010), to support her claim that

defendants violated her constitutional rights.

“[T]he Due Process Clause of the Fourteenth Amendment

protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.”

Troxel v . Granville, 530 U.S. 5 7 , 66 (2000). That i s , “[i]n a

long line of cases, [the Supreme Court has] held that, in

addition to the specific freedoms protected by the Bill of

Rights, the ‘liberty’ specially protected by the Due Process

6 Clause includes the righ[t] . . . to direct the education and

upbringing of one’s children.” Id. (quoting Washington v .

Glucksberg, 521 U . S . 702, 720 (1997)).

In Troxel, the Supreme Court held that a parent’s

substantive due process rights were infringed by a Washington

statute providing that, with respect to minor children, “ ‘[a]ny

person may petition the court for visitation rights at any time,’

and the court may grant such visitation rights whenever

‘visitation may serve the best interest of the child.’ ” 530 U . S .

at 67 (quoting W A S H . R E V . CODE § 26.10.160(c)). As the Court

wrote, “[t]hat language effectively permits any third party

seeking visitation to subject any decision by a parent concerning

visitation of the parent’s children to state-court review.” Id.

By intruding so deeply into parental decisionmaking, the court

found, the Washington statute violated the parental rights

guaranteed by the U . S . Constitution.

In the cases on which Troxel relied to establish the

principle that the Constitution protects the rights of parents to

make decisions concerning their children, substantive due process

violations were found where: (1) a state law prohibited schools,

including private schools, from teaching languages other than

English to students who had not yet passed the eighth grade, see

7 Meyer v . Nebraska, 262 U.S. 390 (1923); (2) a state law compelled

children between eight and sixteen years of age to attend public

schools, see Pierce v . Soc’y of the Sisters of the Holy Names of

Jesus & Mary, 268 U.S. 510 (1925); (3) a state law provided that

“the children of unwed fathers become wards of the State upon the

death of the mother,” Stanley v . Illinois, 405 U.S. 645, 646

(1972); and (4) a state law compelled children to attend school

until age sixteen, see Wisconsin v . Yoder, 406 U.S. 205 (1972). 2

In Meyer, Pierce, Stanley, Yoder, and Troxel, the Supreme

Court struck down intrusive state statutes that effectively

deprived parents of the custody of their children, or expressly

divested parents of the authority to make decisions about the

upbringing and education of their children. Here, by contrast,

Vendouri makes no claim that the school defendants interfered

with her custody of Y.B. – nor could she succeed on such a claim,

given that Birmbas has been awarded sole physical custody of

Y.B., following legal proceedings that afforded Vendouri a full

measure of due process. Similarly, she makes no claim that any

of the school defendants usurped her constitutionally protected

parental rights by making a decision about Y.B.’s upbringing or

2 In Santosky v . Kramer, 455 U.S. 745 (1982), the Supreme Court found a violation of a parent’s right to procedural due process where a state law allowed the complete and irrevocable termination of parental rights based on a fair preponderance of the evidence, rather than clear and convincing evidence.

8 education that should have been made by her. In short, there is

nothing in Troxel or any of the cases cited in Troxel, that

affords Vendouri a constitutional right to notification by WHS

whenever Y.B. is released from school, before the end of the

school day, to the custody of his father.

The Ninth Circuit’s decision in James is equally unavailing.

As Vendouri correctly notes, the James court held “that the

Fourteenth Amendment’s protection of parents’ rights requires

officials to notify a parent with shared legal custody [but not

physical custody] of a transfer in a minor’s physical custody

when the officials have encouraged and facilitated that

transfer.” 606 F.3d at 655. The problem with Vendouri’s

reliance on James is that Vendouri has not alleged a transfer of

Y.B.’s custody of a sufficient magnitude to trigger

constitutional concerns or protections. In James, the custodial

parent, Gail Sherman, “agreed to sign a voluntary agreement with

[the Nevada County Child Protective Services Agency] transferring

[her daughter’s] physical custody to [the child’s maternal

grandmother].” Id. at 649. Here, by contrast, on the facts

alleged in the complaint, there was never any legal transfer of

physical custody. While Vendouri argues that a shift in physical

custody occurs every time a child is released from school, the

daily termination of the in loco parentis relationship between a

9 school and its students is not analogous to the legally agreed-

upon transfer of physical custody from the mother to the

grandmother in James. Moreover, Vendouri does not allege that

WHS administrators encouraged, endorsed, and effectuated Y.B.’s

early release from school in nearly the same way the state actors

in James brought about the transfer of physical custody of Gail

Sherman’s daughter. Thus, James provides little support for

Vendouri’s claim of a constitutional right to notification when

Y.B. is released from school due to illness or emergency.

Even if Vendouri had such a constitutional right, and that

right was violated by the school defendants’ actions in this

case, those defendants would be entitled to qualified immunity.

If the right on which Vendouri bases her claim exists at all, it

was not clearly established at any time relevant to this case.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’ ” Pearson v . Callahan, 555 U.S. ___, ___, 129 S . C t .

808, 815 (2009) (quoting Harlow v . Fitzgerald, 457 U.S. 800, 818

(1982)). Vendouri contends that her fundamental liberty interest

in meaningful participation in the education, care, and

10 management of her son was clearly established at the time of the

conduct she complains o f , and so it was. But, that is not

enough. See Saucier v . Katz, 533 U.S. 194, 202 (2001), overruled

on other grounds by Pearson, 129 S . C t . at 813. “[T]he right the

official is alleged to have violated must have been ‘clearly

established’ in a more particularized, and hence more relevant,

sense: The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson

v . Creighton, 483 U.S. 635, 640 (1987)). Accordingly, “the right

allegedly violated must be defined at the appropriate level of

specificity before a court can determine if it was clearly

established.” Wilson v . Layne, 526 U.S. 603, 615 (1999).

In this case, the right at issue is not the general parental

right to direct the upbringing and education of her child.

Defined at the appropriate level of specificity, the right at

issue here is the claimed right of a noncustodial parent to be

notified by her child’s school whenever the child is dismissed

from school to the parent who has been awarded legal and physical

custody by a court of competent jurisdiction (or that parent’s

appropriate representative).

11 None of the relevant Supreme Court opinions, nor controlling

decision by the United States Court of Appeals for the First

Circuit, establishes such a right. James, the opinion on which

Vendouri relies, was decided after the conduct Vendouri complains

of and identifies a significantly narrower parental right than

the one Vendouri claims the school defendants violated in this

case.3 Moreover, James holds that at the time of the conduct

underlying that case, the right of a noncustodial parent to be

notified of an actual legal transfer of custody was not clearly

established. If the narrow right at issue in James was not

clearly established when the school defendants engaged in the

conduct Vendouri challenges, then the broader right on which

Vendouri bases her claim was not clearly established either. In

short, the decision in James did not make it “clear to a

reasonable [WHS school official] that his conduct was unlawful in

the situation he confronted.” Saucier, 533 U.S. at 202. Because

Vendouri has identified no other basis for determining that the

right on which she bases her claim was clearly established, the

school defendants are entitled to qualified immunity.

3 The right established in James is the right of a noncustodial parent to be notified when his or her child’s physical custody is legally transferred from one person to another.

12 Vendouri’s medical-information claim is less developed than

her notification claim. She appears to assert that the school

defendants violated her parental rights by asking Y.B.’s medical

providers for, and then receiving, Y.B.’s confidential medical

information (pursuant to a medical release executed by Y.B.’s

father), after she had directed school officials not to contact

her son’s doctor and declined to execute a medical release.

Defendants argue, essentially in passing, that Vendouri’s

allegations fail to state a claim. Vendouri does not respond.

Nothing the school defendants are alleged to have done with

respect to Y.B.’s medical information violated Vendouri’s broad

right (as limited by court order) to direct Y.B.’s upbringing and

education. Accordingly, the school defendants are entitled to

dismissal of Vendouri’s federal constitutional claim as that

claim relates to their receipt of Y.B.’s medical information.

Regarding Vendouri’s claims under the New Hampshire

Constitution, the school defendants argue that Vendouri “does not

claim that there is a different standard under state and federal

law and there is not.” (Pl.’s Mem. of Law (document n o . 7 - 1 ) , at

4.) Vendouri does not counter that argument. Assuming a

substantively identical standard, dismissal of the federal claims

13 against the school defendants also entitles them to dismissal of

Vendouri’s identical claims under the New Hampshire Constitution.

Based on the foregoing, all that remains of this case is

Vendouri’s claim against her ex-husband under Part I , Article 2

of the New Hampshire Constitution. Birmbas has been served, but

has neither answered Vendouri’s complaint nor moved to dismiss

the claim against him. Ordinarily, the court would decline to

exercise supplemental jurisdiction over a state law claim after

all federal claims are resolved, and would remand the case to

state court. See Camelio v . Am. Fed’n, 137 F.3d 666, 672 (1st

Cir. 1998). Here, however, Vendouri’s claim under the state

constitution is facially without merit – Part I , Article 2 of the

New Hampshire Constitution constrains the State, not private

citizens. Thus, remand to the Superior Court would only serve to

tax valuable judicial resources for no good reason, and a

decision on the state constitutional claim by this court would

not offend principles of comity. Because Vendouri plainly cannot

state a cognizable cause of action under the New Hampshire

constitution against her former husband, Birmbas is entitled to

dismissal of Vendouri’s claim against him.

14 Conclusion

For the reasons given, defendants’ motion to dismiss

(document n o . 7 ) is granted, and Vendouri’s claim against Birmbas

is dismissed sua sponte. The clerk of the court shall enter

judgment in accordance with this order and close the case.

August 2 7 , 2010

cc: Laurie A . Lacoste, Esq. Robert A . Shaines, Esq. Melissa A . Hewey, Esq. Jonathan S . Springer, Esq.