In the
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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Case No. 1410-72-CV
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Sarah DESARIO and James DESARIO, as
Parents and Next Friends for Daniel DESARIO,
A Minor
Plaintiffs – Appellants
v.
THE TOWN OF MCKINLEY, RHODE ISLAND
And MCKINLEY SCHOOL COMMITTEE
Defendants – Appellees
On appeal from the Judgment of the
United States District Court for the District of Rhode Island
CLERK’S RECORD
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
James DESARIO and Sarah DESARIO,
as Parents and Next Friends for Daniel
DESARIO, A Minor
Plaintiffs
v.
THE TOWN OF MCKINLEY, RHODE
ISLAND And MCKINLEY SCHOOL
COMMITTEE,
Defendants.
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Civil No. 1:15CV281
CLERK’S RECORD: TABLE OF CONTENTS
Plaintiffs’ Original Complaint
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Defendants’ Motion to Dismiss & Supporting Memorandum of Law
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Plaintiffs’ Response in Opposition to Motion to Dismiss
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Memorandum of Decision & Order Granting Defendants’ Motion to Dismiss
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Judgment
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Plaintiffs’ Notice of Appeal
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UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
James DESARIO and Sarah DESARIO,
as Parents and Next Friends for Daniel
DESARIO, A Minor
Plaintiffs
v.
THE TOWN OF MCKINLEY, RHODE
ISLAND And MCKINLEY SCHOOL
COMMITTEE,
Defendants.
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Civil No. 1:15CV281
PLAINTIFFS’ ORIGINAL COMPLAINT AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs JAMES DESARIO and SARAH DESARIO, as Parents and Next Friends for
DANIEL DESARIO, a Minor, by and through the undersigned counsel, file this Original
Complaint and Jury Demand against Defendants THE TOWN OF MCKINLEY, RHODE
ISLAND, and MCKINLEY SCHOOL COMMITTEE for deprivation of civil rights secured by
the Constitution and laws of the United States of America, and would respectfully show the
Court the following:
I. NATURE OF THE CASE
1. This is a civil action pursuant to 42 U.S.C. § 1983 against Defendants for acting under
color of State law to deprive Daniel Desario of rights secured by the Constitution and laws of the
United States, specifically the unconstitutional and unlawful discipline of Daniel Desario based
on statements he made outside of school, which violated his right to free speech as guaranteed by
the First Amendment to the United States Constitution. Plaintiffs seek compensatory damages,
attorneys’ fees, and other legal and equitable relief as compensation for Defendants’ unlawful
actions.
Clerk’s Record 1
II. PARTIES
2. All Plaintiffs are United States citizens and residents of The Town of McKinley,
Providence County, Rhode Island. The minor Plaintiff, Daniel Desario (“Daniel”), at all times
relevant to this lawsuit, was a student at McKinley High School.
3. Defendant THE TOWN OF MCKINLEY, RHODE ISLAND, a political subdivision of
the State of Rhode Island, is a municipal entity that will ultimately be responsible for
implementation of any judgment and payment of any damages and costs awarded as a result of
this action. Pursuant to Rhode Island law, Defendant Town of McKinley provides and maintains
a public school system for the benefit of all inhabitants of the Town and appropriates funds for
this purpose. It operates its public school system through the McKinley School Committee. It
may be served with process by serving the Mayor of the Town of McKinley, Rhode Island.
4. Defendant McKINLEY SCHOOL COMMITTEE is a subdivision of the Town of
McKinley, Rhode Island, and is charged with general management and operation of all public
schools within its district, including McKinley High School. Pursuant to Rhode Island law, the
School Committee establishes, implements, and supervises educational goals and policies of the
school system, determines curriculum, selects the Superintendent of Schools, and reviews
disciplinary actions, including expulsion. It may be served with process by serving the School
Committee Secretary.
III. JURISDICTION
5. This action arises under 42 U.S.C. § 1983, and this Court has jurisdiction over the
claims pursuant to 28 U.S.C. § 1331.
Clerk’s Record 2
IV. VENUE
6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391. Defendants maintain and
operate a public school system within this judicial district, and all events giving rise to this action
occurred within this judicial district.
V. FACTS
7. On or about January 2010, Defendant McKinley School Committee voted to make
Advanced Computer Sciences (ACS) a required course for graduation from all secondary schools
in the McKinley public school system. Beginning in the Fall 2010 semester, ACS was offered to
students on a pass/fail basis, and each student’s grade depended upon his score on a
comprehensive final examination in the spring semester, which included both written and
performance components.
8. Daniel Desario enrolled in the required ACS class for the 2012-13 school year when he
was a junior. At that time, Daniel was a student athlete and member of the McKinley High
School basketball, football, swimming, and golf teams. Because practice and preparation for his
sports activities demanded much of his time and energy, Daniel was unable to spend as much
time studying as other students.
9. McKinley High School student athletes are required to maintain a 2.50 Grade Point
Average (GPA) in order to be members of any school-sponsored team.
10. While some other student athletes also enrolled in the ACS course for the 2012-13
school year, the class was primarily comprised of tech-savvy students, many of whose parents
were employed in information technology positions at New England Institute of Technology
(NEIT), Lincoln Technical Institute (LTI), Massachusetts Institute of Technology (MIT), or
other nearby high-tech entities and were knowledgeable in computer system design, engineering
and related services, programming or research & development and testing labs. Many of these
Clerk’s Record 3
students themselves had technology-related summer or part-time jobs including positions at
GTECH Corp., Infosys, TekCloud, Delphi-US, Oracle, Insight Global, Ranstad Technologies,
Vector Software, and Verizon, and others at various startup companies in the nearby
Boston/Cambridge area. These tech-savvy students all belonged to a school-sponsored computer
club and frequently presented information seminars for other students or groups in the
community.
11. In stark contrast, Daniel’s knowledge of technology was limited to management of
his Facebook page and iPhone messages. He never engaged in any of these practices during
school hours because, while the school provided all necessary computer equipment for ACS, the
school library, and various other courses, it did not permit students to use their own personal
computers or cell phones on school premises.
12. Daniel was aware of the school’s well-publicized policy providing, “Any student who
uses school property, including computers and electronic equipment, for personal
communication or any other inappropriate or unauthorized purpose will be subject to discipline
up to and including suspension.” He fully complied with this policy.
13. During the spring semester, 2013, the McKinley High School basketball and golf
teams were especially strong and advanced to statewide championships. Accordingly, Daniel
was required to devote even more time than usual to practice, train, and otherwise prepare.
Consequently, Daniel’s grades suffered as he earned Cs in both English and biology, and his
score on the ACS final examination was the lowest in the class by more than 20 points.
Therefore, Daniel did not pass the ACS course for the 2012-13 school year.
14. As a result of his poor scholastic performance, Daniel’s GPA slipped below the
requisite 2.50, and the McKinley High School principal, Ms. Lisa Russo, informed him that he
Clerk’s Record 4
would not be allowed to participate on the sports teams for the 2013-14 school year. Daniel later
learned that several other team members were also unable to play because of low grades.
15. Daniel believed that he was unfairly disadvantaged in ACS by being compared to
students with in-depth technical knowledge that he did not possess. Over the summer of 2013,
Daniel appealed the disciplinary decision through all available channels, but his pleas fell on
deaf ears. Consequently, while he was still a student at McKinley High School, he was no longer
a part of the school’s student athletic program. Daniel was excluded from football practice when
the team began two-a-days in August, and he was not allowed to dress out or be present on the
field for any official games.
16. Because he was not allowed to play school-sponsored sports his senior year, Daniel
was deprived of an opportunity to be reviewed by college scouts/recruiters, and therefore lost out
on the chance for an athletic scholarship. In addition, some of the fraternities from nearby
universities were beginning to invite high school seniors to early rush parties and extend
invitations to them to pledge. Daniel had expected his status as a star athlete to ensure that he
got into a good fraternity, but he received only a few invitations and no pledge bid.
17. Without Daniel and the other disciplined student athletes, the football team’s
performance was abysmal, and they lost the first two games by wide margins. Daniel began to
express his frustration online by posting private messages on Facebook. These postings were all
done outside of school hours, either evenings or weekends, on his own personal computer, either
in the privacy of his home or from a friend’s house. Daniel intended these postings for a very
small, select circle of friends who were members of the starting football line-up and some
cheerleaders, but some of these recipients shared his comments with other students.
18. At first, Daniel’s postings focused on his unfair treatment by the Principal, Ms.
Russo, and his unfair comparison to other students in the ACS course, whom he referred to as the
Clerk’s Record 5
“mouse potatoes.” In one posting, Daniel stated, “JOCKS ROCK! Russo is obviously trying to
destroy McKinley High’s athletic program and replace it with a bunch of cyber-creeps –
probably because she herself is overweight, out of shape, and considers Candy Crush a strenuous
workout. Wow! The Atlantic Ten can hardly wait to sign these techno-nerds!” This message
was accompanied by an unflattering drawing of the principal in a cheerleader uniform yelling,
“GO TEAM!” to a group of robots who were identifiable caricatures of specific “mouse
potatoes.”
19. As the football team’s string of losses continued, Daniel continued to express his
own feelings of frustration and injustice. Daniel encouraged his private circle of Facebook
friends to shun the “mouse potatoes” at school and exclude them from off-campus social
gatherings, and Daniel urged them to spread the word to the university fraternity members to
“avoid these computer viruses like the plague.”
20. One McKinley High School cheerleader posted a message to the circle of Facebook
recipients suggesting that they try to hang out with the “mouse potatoes” and get to know them
better. She said that some of them were in her calculus class and had helped her study. Daniel
posted in a response, “Byte me! What should we do with them – maybe take the guys out and get
them high enough to hack into the school’s system and fix our grades?” Later, Daniel posted a
photo-shopped picture of some of the “mouse potatoes” dancing with blow-up dolls and a
caption saying that the “mouse potatoes” would probably have to invite avatars to the winter
formal because real girls would never go out with them.
21. In the few weeks after he posted these comments, some of Daniel’s classmates told
him they had seen his remarks or drawings and found them humorous. Some also told him that
they agreed with him and would never invite the “mouse potatoes” to join school social clubs or
elect them to class officer positions. In addition, Daniel overheard some chatter among other
Clerk’s Record 6
students about the online postings, including occasional comments about how the school
administration did not value their athletic program, and some of these comments were made in
the presence of teachers. However, no riots, fights, protests, or other disciplinary issues regarding
other students arose as a result of the postings, and students eventually stopped discussing it
altogether.
22. Daniel’s Facebook postings contained no threat of physical violence to Daniel’s
classmates, school administration, or school property, and made no reference to any prior
instance of school violence anywhere in the country.
23. Unbeknownst to Daniel, one of his Facebook friends was dating Lindsay Weir, the
sister of Samuel Weir, a student Daniel had designated a “mouse potato” and had specifically
ridiculed in some of his postings. Samuel had told Lindsay that he was feeling lonely and
depressed, was not having any fun, and had considered changing schools because he “felt like an
outsider.” While studying with her boyfriend, Ms. Weir happened to see one of Daniel’s
messages. When she learned about the social media postings belittling her brother and his
friends, she thought this explained why her brother had been so unhappy.
24. On or about November 2, 2013, Lindsay Weir printed out all of Daniel’s postings and
showed them to her parents. The parents brought the matter to the attention of McKinley High
School officials and demanded that they take action.
25. A few days later, Ms. Russo called Daniel into her office to discuss the postings.
Although Daniel insisted that the postings were just intended as a harmless joke among a few
close friends, Ms. Russo referred to them as a “hate campaign” and suspended Daniel from
school for the remainder of the fall 2013 semester. Ms. Russo told him that she suspected his
conduct was responsible for the recent decline in student organization membership because a
number of students told faculty sponsors they were made to feel “unwelcome.” She also said
Clerk’s Record 7
these postings explained why some students complained that team captains never selected them
for intramural sports activities. In addition, Ms. Russo cited a recent incident when some
students had resigned from the student council because their classmates would not serve on
committees with them. Further, she said the school had inexplicably received some calls from
parents inquiring whether their children’s records had been compromised because they heard a
rumor about computer tampering.
26. At the insistence of Daniel’s parents, Ms. Russo and the Superintendent of Schools
met with them to discuss the decision to suspend Daniel from school. Ms. Russo was unwilling
to reverse the suspension, and the Superintendent upheld the principal’s decision. The matter
was then referred to the administrative appeals process provided by Rhode Island statute. The
McKinley School Committee granted an immediate hearing before an impartial tribunal.
However, when the appeals process was exhausted, the McKinley School Committee and its
Chairperson, the Mayor of the Town of McKinley, affirmed the discipline imposed by Principal
Russo. The Weirs were satisfied with this result and chose not to pursue any private action.
27. During his suspension from school, Daniel was required to meet with tutors for
scheduled sessions at an alternative location and was forbidden to be present at any time on the
school campus. Although this Plan was supposed to afford him continued academic progress, he
was extremely stressed and unable to keep up with his assignments. Ultimately, he failed his fall
semester finals, which meant that he could not graduate with his class in May 2014. He attended
summer school, but still has not satisfied all requirements for graduation.
VI. CAUSE OF ACTION
28. Plaintiffs re-allege and incorporate by reference all allegations set out above as if set
forth here in full.
Clerk’s Record 8
29. Daniel’s off-campus student speech is entitled to protection under the First
Amendment of the United States Constitution, which states that Congress shall make no law
abridging the freedom of speech. U.S. Const. AMEND. I. This constitutional provision embodies
a profound national commitment to the free exchange of ideas. Thus, with only a few narrow
exceptions, the government may not restrict expression because of its message, its ideas, its
subject matter, or its content -- even when the idea expressed may be offensive, disagreeable,
misguided, or even hurtful.
30. Acting under color of State law, Defendants have deprived Daniel of his First
Amendment right of free speech in violation of 42 U.S.C. § 1983 by regulating and imposing
discipline because of his private electronic expression that originated off school grounds and
outside of school hours.
VII. DAMAGES
31. As a direct and proximate result of Defendants’ actions, Plaintiffs have suffered and
continue to suffer loss of employment opportunities, emotional distress, severe anxiety, and
damage to reputation.
VIII. JURY DEMAND
32. Plaintiffs assert rights under the Seventh Amendment to the United States
Constitution and demand, in accordance with Federal Rule of Civil Procedure 38, a trial by jury
on all issues.
WHEREFORE, Plaintiffs pray that they be granted the following relief:
a. An award of monetary damages to Plaintiffs for past and future economic losses suffered
due to Defendants’ unlawful behavior;
Clerk’s Record 9
b. An award to Plaintiffs of compensatory damages sufficient to compensate them for
mental anguish and emotional distress, embarrassment and humiliation, and damage to
reputation as a result of Defendants’ actions;
c. An award to Plaintiff of the costs and disbursements of this action, including reasonable
attorneys’ fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42
U.S.C. § 1988(b); and
d. An award to Plaintiffs of other and additional legal and/or equitable relief to which they
may be justly entitled.
Respectfully submitted on this 28th day of March, 2014.
_/s/ Phillip Leotardo_______
Phillip Leotardo
Bar No. 12342 345
Leotardo Law, LLC
5555 Brooklyn Street
Tel: (123) 456-7890
Fax: (123) 098-7654
Phil@LeotardoLaw.com
Attorney for Plaintiffs
Clerk’s Record 10
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
James DESARIO and Sarah DESARIO,
as Parents and Next Friends for Daniel
DESARIO, A Minor
Plaintiffs
v.
THE TOWN OF MCKINLEY, RHODE
ISLAND And MCKINLEY SCHOOL
COMMITTEE,
Defendants.
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Civil No. 1:15CV281
DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS AND
MEMORANDUM IN SUPPORT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Defendants The Town of McKinley, Rhode Island, and McKinley School
Committee, before filing any responsive pleading in the above entitled cause, and move to
dismiss with prejudice all claims alleged in Plaintiffs’ Original Complaint and Jury Demand
pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiffs fail to state any claim
upon which relief can be granted.
I. STANDARD FOR DISMISSAL
1. Federal Rule of Civil Procedure 8(a)(2) requires plaintiffs to plead “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To
escape dismissal under Fed. R. Civ. P. 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 672 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
2. In order to survive dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a plaintiff’s
“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
Clerk’s Record 11
conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. (internal citations omitted). “To resolve [a defendant’s] Motion to Dismiss, the
Court must accept as true all factual allegations in the Complaint, construe them in favor of
Plaintiff, and decide whether, as a matter of law, Plaintiff could prove any set of facts which
would entitle him to relief.” Berner v. Delahanty, 937 F. Supp. 62 (D. Me. 1996) aff’d, 129 F.3d
20 (1st Cir. 1997). However, while the Court must treat non-conclusory factual allegations in the
complaint as true, it must disregard legal conclusions couched as fact and allegations that merely
parrot the elements of the cause of action. Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 8
(1st Cir. 2011).
II. FACTS
3. This lawsuit arises from a school disciplinary action. The minor Plaintiff, Daniel
Desario (“Mr. Desario”), engaged in a series of social media postings targeting a number of his
classmates, exposing them to ridicule, isolation, and emotional distress. Because of this conduct
Mr. Desario was suspended from school. Having exhausted all administrative appeals provided
by Rhode Island law, his parents filed suit against the Town of McKinley, Rhode Island, and the
McKinley School Committee pursuant to 42 U.S.C. § 1983, claiming that his First Amendment
right of free speech was violated by the school administration’s disciplinary action.
III. ARGUMENT
4. Plaintiffs have failed to state a claim upon which relief can be granted because the
facts stated in the Complaint establish no violation of any constitutional right. A claim under §
1983 has two essential elements. “ First, the challenged conduct must be attributable to a person
acting under color of state law, and second, the conduct must have worked a denial of rights
Clerk’s Record 12
secured by the Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st
Cir.1997).
5. There is no dispute that all school officials, administrators, and Committee members
were acting pursuant to Rhode Island law when they imposed, reviewed, and upheld the
suspension at issue in this lawsuit and thus were acting under color of law.
6. However, Plaintiffs have failed to state a claim upon which relief can be granted
because Mr. Desario suffered no denial of his First Amendment rights. The United States
Supreme Court has repeatedly affirmed the comprehensive authority of the States and of school
officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct
in the schools, and in this context has recognized that public school students do not enjoy the
same First Amendment protection as adults in other settings. See, e.g., Morse v. Frederick, 551
U.S. 393, 396-97 (2007); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
7. The Supreme Court has held that schools need not tolerate student speech that
conflicts with their “basic educational mission,” even though the First Amendment would not
permit censorship of such speech outside the school. See Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 266 (1988) (quoting Fraser, 478 U.S. at 685). Thus, school officials can regulate
student speech under some circumstances even if the speech does not originate on campus or
during a school-sponsored event. The Supreme Court has not limited public schools’ educational
mission to the classroom:
The process of educating our youth for citizenship in public schools is not confined to
books, the curriculum, and the civics class; schools must teach by example the shared
values of a civilized social order. Consciously or otherwise, teachers—and indeed the
older students—demonstrate the appropriate form of civil discourse and political
expression by their conduct and deportment in and out of class.
Fraser, 478 U.S. at 683.
Clerk’s Record 13
8.
Further, the social media postings at issue in this case are precisely the kind of
speech that public schools are authorized to regulate. Defendants admit that Mr. Desario did not
purport to speak on behalf of the school, and did not threaten violence, encourage illegal activity,
or expose students to any lewd or obscene statements. However, he did disparage, mock, and
ridicule his fellow classmates and urged others to exclude them. His malicious postings caused
substantial disorder, materially disrupted school operations, and interfered with the rights of
other students.
IV. CONCLUSION & PRAYER
9. Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants move to dismiss with prejudice all of
Plaintiffs’ claims because the facts alleged in the Complaint fail to state a claim upon which
relief can be granted. Specifically, Mr. Desario’s First Amendment rights were not violated
because (1) students’ speech is subject to reasonable regulation by school administrators; and (2)
Mr. Desario’s speech was appropriately disciplined under Defendants’ authority because it
materially and substantially interfered with the requirements of appropriate discipline in the
operation of the school and invaded the rights of others.
Respectfully submitted this 11th day of April, 2014.
_/s/ Dwight Harris_________
Dwight Harris
Bar No. 98767890
Harris & Associates
7777 Long Island Drive
Tel: (123) 987-9870
Fax: (123) 654-6543
Dwight@AmericanLaw.com
Attorney for Defendants
Clerk’s Record 14
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing Rule
12(b)(6) Motion to Dismiss and Memorandum in Support was forwarded to Phillip Leotardo,
Attorney for Plaintiffs, this 11th day of April, 2014.
_/s/ Dwight Harris_________
Dwight Harris
Bar No. 98767890
Clerk’s Record 15
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
James DESARIO and Sarah DESARIO,
as Parents and Next Friends for Daniel
DESARIO, A Minor
Plaintiffs
v.
THE TOWN OF MCKINLEY, RHODE
ISLAND And MCKINLEY SCHOOL
COMMITTEE,
Defendants.
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Civil No. 1:15CV281
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ RULE 12(b)(6)
MOTION TO DISMISS AND MEMORANDUM IN SUPPORT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Plaintiffs James DESARIO and Sarah DESARIO, as Parents and Next
Friends for DANIEL DESARIO (“Daniel”), a Minor, by and through the undersigned counsel,
and file this Response in Opposition to Defendants’ Rule 12(b)(6) Motion to Dismiss. Plaintiffs
contend that their Original Complaint alleged sufficient facts to state a claim under 42 U.S.C. §
1983 for a violation of Daniel’s right to free speech under the First Amendment of the United
States Constitution.
I. INTRODUCTION
1. Defendants have filed their Motion To Dismiss to wholly avoid responsibility for the
economic loss and reputational harm Daniel suffered stemming from Defendants’ own
impermissible actions.
2. The facts establish that Defendants impermissibly regulated Daniel’s off-campus
student speech, denying him of his First Amendment right to free speech in violation of 42
U.S.C. § 1983.
Clerk’s Record 16
II. FACTS
3. Plaintiffs rely on all facts as set forth in Plaintiffs’ Original Complaint and incorporate
them herein.
III. STANDARD FOR DISMISSAL UNDER RULE 12(b)(6)
4. Defendants have filed a Rule 12(b)(6) Motion to Dismiss Daniel’s § 1983 claim,
erroneously asserting that he has failed to state a claim upon which relief can be granted. When
reviewing Daniel’s claim on a Rule 12(b)(6) motion, the Court must construe the Complaint in
Daniel’s favor, and all facts must be taken as true. See Ruiz v. Bally Total Fitness Holding
Corp., 496 F.3d 1, 5 (1st Cir. 2007). To prevail on a § 1983 claim, Daniel must simply prove
that the Defendants, acting under the color of state law, deprived him of a constitutional right.
See 42 U.S.C. § 1983.
5. The Motion to Dismiss must be denied if the facts alleged could show that
Defendants, acting under color of state law, have deprived Daniel “of a right secured by the
‘Constitution and laws’ of the United States.” See Adickes v. S. H. Kress & Co., 398 U.S. 144,
150 (1970). Defendants do not dispute that they were acting pursuant to state law, and Daniel’s
Complaint sufficiently alleges facts from which a trier of fact could find that Defendants violated
Daniel’s constitutional right of free speech. Therefore, Daniel has sufficiently stated a claim for
relief under § 1983.
IV. ARGUMENT
6. Defendants’ Motion to Dismiss should be denied because Defendants, acting pursuant
to state law, have deprived Daniel of his constitutional right to free speech provided by the First
Amendment of the Constitution of the United States in violation of 42 U.S.C. § 1983.
Specifically, Defendants impermissibly regulated and disciplined Daniel because of his private
electronic expression that originated off school grounds and outside of school hours.
Clerk’s Record 17
7. The First Amendment states that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. AMEND. I. This provision embodies “[o]ur profound national
commitment to the free exchange of ideas.” Harte–Hanks Commc’ns, Inc. v. Connaughton, 491
U.S. 657, 686 (1989). “[A]s a general matter, ‘the First Amendment means that government has
no power to restrict expression because of its message, its ideas, its subject matter, or its
content.’” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983) (quoting Police Dep’t of
City of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).
8. Daniel’s off-campus speech was an expression of his own private feelings, and as such
falls outside of the specific regulatory power granted to schools by the Supreme Court. The
Supreme Court has repeatedly noted that students do not shed their First Amendment rights to
free speech when they enter the “schoolhouse gate,” and has allowed schools to regulate student
speech only in a few very specific circumstances, all involving speech that occurred on campus
or at school-sponsored and school-approved events. See, e.g., Morse v. Frederick, 551 U.S. 393,
396-97 (2007); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). Indeed, after
holding that a school could regulate a sexually explicit monologue during a school assembly
“directed towards an unsuspecting audience of teenage students,” Fraser, 478 U.S. at 685, the
Supreme Court later recognized that, if the student in Fraser had “delivered the same speech in a
public forum outside the school context, he would have been protected.” Morse, 551 U.S. at
394.
9. Whatever the challenges of applying the Constitution to ever-advancing technology,
“the basic principles of freedom of speech and the press, like the First Amendment's command,
do not vary” when a new and different medium for communication appears. Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495, 503 (1952). The most basic of those principles is this: “[A]s a general
matter, . . . government has no power to restrict expression because of its message, its ideas, its
Clerk’s Record 18
subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573
(2002) (internal quotation marks omitted).
10. Even if the constitution did allow the Defendants to regulate students’ off-campus
speech, Daniel’s private, often-humorous remarks were not the kind of speech that would be
appropriately subject to discipline. As Defendants admit, the speech was not violent,
threatening, or obscene. Therefore, it should not have been regulated because it was also not
disruptive to the learning environment, nor did it interfere with the rights of others.
V. CONCLUSION & PRAYER
Plaintiffs have alleged sufficient facts to show that Defendants deprived Daniel Desario
of his constitutional right to free speech provided by the First Amendment of the Constitution of
the United States when they suspended him from school for his off-campus remarks. Public
schools have no authority to regulate students’ off-campus speech, and even if they did, the
particular remarks at issue did not meet the test that would allow the school to subject Daniel to
discipline. Therefore, Defendants have violated 42 U.S.C. § 1983, and their Motion to Dismiss
should be DENIED.
Respectfully submitted this 9th day of May, 2014.
_/s/ Phillip Leotard_________
Phillip Leotardo
Bar No. 12342 345
Leotardo Law, LLC
5555 Brooklyn Street
Tel: (123) 456-7890
Fax: (123) 098-7654
Phil@LeotardoLaw.com
Clerk’s Record 19
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing Response
in Opposition to Defendants’ Rule 12(b)(6) Motion to Dismiss and Memorandum in Support was
forwarded to Dwight Harris, Attorney for Defendants, this 9th day of May, 2014.
_/s/ Phillip Leotard_________
Phillip Leotardo
Bar No. 12342345
Clerk’s Record 20
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
James DESARIO and Sarah DESARIO,
as Parents and Next Friends for Daniel
DESARIO, A Minor
Plaintiffs
v.
THE TOWN OF MCKINLEY, RHODE
ISLAND And MCKINLEY SCHOOL
COMMITTEE,
Defendants.
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Civil No. 1:15CV281
MEMORANDUM OF DECISION AND ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS
On this date the Court considered Defendants’ Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(6), and having reviewed the pleadings on file, the arguments presented, and the
supporting authorities, finds that Defendants’ Motion should be GRANTED for the reasons
stated below:
Defendants are Rhode Island public school administrators. In their Complaint, Plaintiffs
allege a cause of action under 42 U.S.C. § 1983, stating that Defendants, acting pursuant to
Rhode Island law, deprived the minor Plaintiff, Daniel Desario (“Desario”), of his First
Amendment right to free speech by suspending him from McKinley High School because of
statements he posted via electronic media from a private computer while he was not on school
premises. The postings were ostensibly directed to certain friends of Desario. However,
Desario’s statements specifically targeted another identifiable group of students, ridiculed them,
and urged his friends to exclude and isolate those students. Defendants have moved to dismiss,
alleging that these facts cannot support a cause of action for which relief can be granted.
Clerk’s Record 21
The Court finds that the facts alleged in Plaintiffs’ Complaint fail to state a claim under
42 U.S.C. § 1983. Defendants do not dispute that they were acting pursuant to state law when
they suspended Desario from McKinley High School. However, Plaintiffs suffered no
deprivation of constitutional rights, a required element for recovery under § 1983.
It is well established that, consistent with the First Amendment, public school officials
may regulate and impose discipline for certain types of student speech in the educational
environment, even though the same speech would not be subject to government regulation if
delivered by an adult in a different setting. The fact that such student speech originates off
campus does not abrogate the school’s authority to regulate it, particularly in this age of
electronic communication.
The Court further finds that the statements at issue here are precisely the kind of student
speech that the United States Supreme Court has allowed school authorities to proscribe
consistent with the First Amendment. Defendants admit that Desario’s electronic postings do not
give the appearance of school sponsorship, threaten violence, or encourage illegal activity.
Nevertheless, this speech was reasonably foreseeable to cause, or did in fact cause, substantial
disruption of the work and operation of the school and invaded the rights of other students.
Therefore, school officials did not violate the First Amendment by disciplining Desario for
posting these remarks.
Accordingly, it is ORDERED that Defendants’ Motion to Dismiss is GRANTED, and it
is hereby ORDERED that Plaintiff’s Complaint is hereby DISMISSED.
ENTERED at Providence, Rhode Island, this 16th day of September, 2014.
_/s/ Peter Paul Gualtieri_______
Peter Paul Gualtieri
Chief Judge
Clerk’s Record 22
Clerk’s Record 23
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
James DESARIO and Sarah DESARIO,
as Parents and Next Friends for Daniel
DESARIO, A Minor
Plaintiffs
v.
THE TOWN OF MCKINLEY, RHODE
ISLAND And MCKINLEY SCHOOL
COMMITTEE,
Defendants.
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Civil No. 1:15CV281
JUDGMENT
On September 16, 2014, Chief Judge Gualtieri issued his Memorandum of Decision and
Order Granting Defendants’ Motion to Dismiss. Accordingly, judgment of dismissal is hereby
entered in favor of The Town of McKinley, Rhode Island, and McKinley School Committee
against James Desario and Sarah Desario, as Parents and Next Friends for Daniel Desario, a
Minor.
_/s/ Robert Baccelieri, Jr.________
Robert Baccalieri, Jr.
Clerk of Court
Dated at Providence, Rhode Island, this 19th day of September, 2014.
Clerk’s Record 24
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
James DESARIO and Sarah DESARIO,
as Parents and Next Friends for Daniel
DESARIO, A Minor
Plaintiffs
v.
THE TOWN OF MCKINLEY, RHODE
ISLAND And MCKINLEY SCHOOL
COMMITTEE,
Defendants.
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Civil No. 1:15CV281
NOTICE OF APPEAL
Notice is hereby given that Plaintiffs hereby appeal to the United States Court of Appeals
for the First Circuit from the Order Granting Defendants’ Motion to Dismiss entered in this
action on the 16th day of September, 2014.
Respectfully submitted this 13th day of October, 2014.
_/s/ Phillip Leotard_________
Phillip Leotardo
Bar No. 12342 345
Leotardo Law, LLC
5555 Brooklyn Street
Tel: (123) 456-7890
Fax: (123) 098-7654
Phil@LeotardoLaw.com
Clerk’s Record 25
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing Notice of
Appeal was forwarded to Dwight Harris, Attorney for Defendants, this 13th day of October,
2014.
_/s/ Phillip Leotard_________
Phillip Leotardo
Bar No. 12342345
Clerk’s Record 26