Mask Case Decision

Case 1:22-cv-00116-LJV Document 82 Filed 03/01/23 Page 1 of 47
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK
DAVID MONGIELO, et al.,
Plaintiffs,
22-CV-116-LJV
v. DECISION & ORDER
KATHLEEN HOCHUL, et al.,
Defendants.
On February 8, 2022, the plaintiffs, a group of parents whose children attend
public schools in Western New York, commenced this action in their personal and
representative capacities. Docket Item 1. They assert claims under 42 U.S.C. § 1983
related to a state-wide mask mandate that was enacted during the COVID-19
pandemic. Id. The plaintiffs allege that the defendants—a group of New York State
officials, Erie County officials, and superintendents of various school districts—enacted
and enforced that mask mandate. Id. And they say that the mandate violated their and
their children’s rights under the United States Constitution’s First Amendment, Fourth
Amendment, Fifth Amendment, Ninth Amendment, Fourteenth Amendment, Supremacy
Clause, and Guarantee Clause. Id.
The defendants have filed a total of six motions to dismiss the complaint. Docket
Items 30, 35, 64, 68, 72, and 79. The plaintiffs responded to each of those motions,
Docket Items 47, 51-1, 75, 76, 77, and 80, and most of the defendants replied, Docket
Items 50, 56, 78, and 81. For the following reasons, the defendants’ motions to dismiss
are granted.
FACTUAL BACKGROUND 1
On August 27, 2021, more than a year into the COVID-19 pandemic, Howard
Zucker, then-New York State Commissioner of Health, issued “[t]he main mask
mandate at issue in this case.” Docket Item 1 at ¶ 116. It stated, in relevant part, that
“any person who is over age two and able to medically tolerate a face-covering may be
required to cover their [sic] nose and mouth with a mask or face-covering when: (1) in a
public place and unable to maintain, or when not maintaining, social distance; or (2) in
certain settings . . . which may include schools.” Id. at ¶ 117. And it provided that the
Health Commissioner would “issue findings regarding the necessity of face-covering
requirements at the time such requirements are announced.” Id.
On December 10, 2021, defendant Mary T. Bassett, the New York State
Commissioner of Health, announced such requirements. Id. at ¶¶ 118-19. More
specifically, she promulgated a rule that required “all state residents to wear a face-
covering [] if above the age of [two] and able to medically tolerate same while in a public
place and not able to maintain social distancing.” Id. (citing 10 N.Y. Comp. Codes R. &
Regs. tit. 10, § 2.60(a)). Defendant Kathleen Hochul, the Governor of New York,
endorsed that rule, which applied to “schools and school children.” Id.
On January 24, 2022, New York State Supreme Court Justice Thomas
Rademaker “struck down” the December 2021 rule. Id. at ¶¶ 109, 120-21. But
defendant Mark C. Poloncarz, the Erie County Executive, “publicly reminded everyone,
1On a motion to dismiss, the court “accept[s] all factual allegations as true and
draw[s] all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). The following facts
are taken from the complaint, Docket Item 1, unless otherwise noted.
2
including students, that [a mask] mandate [was] still in effect in Erie County” pursuant to
the “emergency decree” he had issued on November 23, 2021. Id. at ¶¶ 109, 127. 2
Because it had been struck down the day before, the state rule requiring masks
in public schools “was a nullity” during the school day on January 25, 2022. Id. at ¶
123. That day, “many students”—including the plaintiffs’ children—“attempted to enter
school mask-free.” Id. at ¶ 114. But when they did, they “were accosted by school
authorities and the police, and [they] were forced to leave school or remain isolated in a
separate room for several hours while receiving no educational services.” Id. 3
State Health Commissioner Bassett issued another rule on January 31, 2022—
the one in effect when the plaintiffs commenced this action. Id. at ¶ 124. 4 It required
that face-coverings be used in “school settings” by “teachers, staff, students, and
visitors . . . over age two and able to medically tolerate a face covering/mask.” Id. It
specifically prohibited “mask breaks.” Id. Under that rule, the plaintiffs’ children were
“forced to wear facemasks nearly six hours a day while attending school.” Id. at ¶ 105.
The children could not “opt out” of the mask mandate because “[s]chool attendance is
compulsory” in New York. Id. at ¶¶ 105-06.
The mask mandate was rescinded on March 2, 2022. Docket Item 30-5 at 14;
see Docket Item 47 at 2 (conceding that the mask mandate has been rescinded).
2Defendant Gale R. Burstein, the Commissioner of the Erie County Department

of Health, had “issued a similar order on the same date.” Docket Item 1 at ¶ 128.
3 At 5:00 p.m. on January 25, 2022, the New York State Supreme Court,
Appellate Division, Second Department, temporarily stayed Justice Rademaker’s order
striking down the state rule. Docket Item 1 at ¶ 122.
4Throughout this opinion, this Court refers to the various rules requiring masking
in schools collectively as the “mask mandate.”
3
THE PARTIES
I. THE DEFENDANTS
The defendants are officials who have “promulgated and/or enforced mask
mandates” or who “stand[] ready to impose or reimpose mask mandates” should a
mandate be “struck down by court order.” Docket Item 1 at ¶¶ 107-08.
Defendants Hochul and Bassett, as well as Betty A. Rosa, the Commissioner of
the New York State Education Department (collectively, the “state defendants”), are
sued in their individual and official capacities. Id. at ¶¶ 80-88. Defendants Poloncarz
and Burstein (collectively, the “Erie County defendants”) also are sued in their individual
and official capacities. Id. at ¶¶ 102-04.
A number of Western New York school district superintendents also have been
named as defendants: Joseph Siracuse, Superintendent of the Wayne Central School
District, id. at ¶ 89; Susan Hasenauer, Superintendent of the Newark Central School
District, id. at ¶ 90; Thomas Simon, Superintendent of the Portville School District, id. at
¶ 91; Sabatino Cimato, Superintendent of the Kenmore-Tonawanda School District, id.
at ¶ 92; Kristin Swann; Superintendent of the Spencerport Central School District, id. at
¶ 93; Hank Stopinski, Superintendent of the Royalton-Hartland School District, id. at
¶ 94; Sean Croft, Superintendent of the Starpoint School District, id. at ¶ 95; Karen
Geelan, Superintendent of the Olean City School District, id. at ¶ 96; Michael Cornell,
Superintendent of the Hamburg Central School District, id. at ¶ 97; Michael Baumann,
Superintendent of the Newfane Central School District, id. at ¶ 98; Robert Breidenstein,
Superintendent of the Salamanca City Central School District, id. at ¶ 99; Douglas
Scofield, Superintendent of the Iroquois Central School District, id. at ¶ 100; and
4
Maureen Donahue, Superintendent of the Southwestern Central School District, id. at
¶ 101 (collectively, the “superintendent defendants”). The superintendent defendants,
who are sued in their official and individual capacities, are “responsible for enforcing
and/or issuing orders and mandates requiring students to wear masks” in their
respective districts. Id. at ¶¶ 89-101. They also are “responsible for making sure that
court orders are respected and enforced and for mask-related disciplinary policies and
procedures.” Id. 5
II. THE PLAINTIFFS
The plaintiffs “are parents of children who [we]re subjected to the defendants’
various mask requirements.” Id. at ¶ 20. 6
A. Niagara County Parents and Students
The following plaintiffs are parents of children who attend public schools in
Niagara County:
Sarah Greenawalt is the parent of two children who attend Royalton-Hartland
Elementary School: EE, a third-grader; and CG, who is in pre-school. Id. at ¶ 42. On
5 The complaint alleges that Cimato “refused to comply with the court order
voiding the mask mandate,” Docket Item 1 at ¶ 40, and that Baumann “insisted on
enforcing the mask mandate on January 25, 2022,” id. at ¶ 66. It also alleges that on
January 25, 2022, one plaintiff’s children “were forced to wear masks” even after the
plaintiff “notified [Siracuse] that a court decision had nullified the mandate.” Id. at ¶ 24.
But the complaint does not allege that Siracuse was the school official who forced that
plaintiff’s children to wear masks. See id. Nor does it not make specific allegations
about the conduct of any superintendent defendant other than Cimato, Baumann, and
Siracuse. See generally Docket Item 1.
6 The children’s ages and grade levels are those alleged in the complaint.
5
January 25, 2022, “[Greenawalt’s] children were denied entrance to the school with the
police present,” presumably because they were not wearing masks. Id. at ¶ 43.
Marian Pilecki is the parent of DP, who attends Starpoint High School. Id. at
¶ 63. DP requested a “medical exemption” from the mask mandate, “but it was denied
by the school without just cause.” Id. at ¶ 64.
David Mongielo is the parent of DM, who attends Lockport High School. Id. at
¶ 22. The complaint does not allege that DM encountered any specific issues with
masking. See generally Docket Item 1.
Marcy Hall is the parent of two children who attend Starpoint Elementary School:
HH, a fifth-grader; and JH, a third-grader. Id. at ¶ 44. The complaint does not allege
that Hall’s children encountered any specific issues with masking. See generally
Docket Item 1.
Heather Quattrini is the parent of three students in the Newfane School District:
MQ, a twelfth-grader; MQ, a ninth-grader; and MQ, a ninth-grader. Id. at ¶ 65. The
complaint does not allege that Quattrini’s children encountered any specific issues with
B. Wayne County Parents and Students
Wayne County:
Jessica Bogdanoff is the parent of three children in the Wayne Central School
District: LB, a fourth-grader; HB, a third-grader; and OB, a kindergartener. Id. at ¶ 23.
On January 25, 2022, all three students arrived at school without masks. Id. at ¶ 24.
OB “was handed a mask immediately,” id. at ¶ 25, while LB and HB were “immediately”
6
sent to the principal’s office and then “placed in an isolation room . . . for three hours,”
id. at ¶ 26. LB and HB “played on their [laptops] all day,” did not participate in recess,
and ate their lunch in the isolation room. Id. at ¶ 27. In addition to the events of
January 25, 2022, LB, HB, and OB “had other issues related to masking.” Id. at ¶ 28.
For example, they were forced to wear masks outside and in “classrooms that [we]re
over 80 degrees.” Id. at ¶ 29. They were “not allowed to play tag or be near each other
at recess.” Id. “[M]ask breaks [we]re rarely provided,” and they were even “made to
color pro-mask propaganda.” Id. Due to the children’s “headaches, bloody noses, and
allergies,” their pediatrician “wrote a doctor’s note to request desk shields”—presumably
in lieu of face masks. Id. at ¶ 30. But “[t]he school physician denied [that] request.” Id.
April Bueg is the parent of DB, a ninth-grader who attends Newark Senior High
School. Docket Item 1 at ¶ 31. Before January 25, 2022, DB had “numerous
confrontations over masking that interfered with his education.” Id. at ¶ 35. Then, on
January 25, he “was suspended and removed from class for not wearing a mask.” Id. at
¶¶ 32-34.
Jessi Fava is the parent of three children in the Wayne Central School District:
KC, a twelfth-grader; MF, a sixth-grader; and AA, a first-grader. Id. at ¶ 36. On January
25, 2022, AA’s principal “entered AA’s class and ordered her to wear a mask.” Id. at
¶ 37. “MF has been disciplined for lowering his mask to take a drink at lunch.” Id. But
the complaint does not allege that KC encountered any specific issues with masking.
See generally Docket Item 1.
Ashley Maggio is the parent of two students in the Wayne Central School District:
TM, a fourth-grader; and KM, a second-grader. Id. at ¶ 51. “Her children have had
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numerous problems with masks.” Id. at ¶ 52. For example, KM has experienced
“chronic rashes,” and TM has experienced “exacerbation of asthma, headache[s,] and
[an] upset stomach.” Id. On January 25, 2022, “TM was repeatedly ordered to wear a
mask.” Id.
C. Cattaraugus County Parents and Students
Cattaraugus County:
Tim Hanson is the parent of two children who attend Portville School: KM, an
eighth-grader; and RM, a fourth-grader. Id. at ¶ 45. KM “has trouble breathing while
wearing a mask,” and RM “complains about ear pain”—presumably related to masking.
Id. at ¶¶ 46-47. The students’ school district has “ignored” “[a]ll complaints” about these
issues. Id. at ¶ 48.
Amy Hill is the parent of SO, a sixth-grader who attends Seneca Elementary
School. Id. at ¶ 49. On January 25, 2022, SO “was ordered to leave the school for not
wearing a mask”; in fact, SO “has been sent home several times for mask violations.”
Id. at ¶ 50.
Kerrie McKenzie is the parent of EC, a kindergartener who attends Eastview
Elementary School. Id. at ¶ 53. “EC has been hassled by a teacher over masks.” Id. at
¶ 54.
Heather Oldenburg is the parent of NO, a third-grader who attends Eastview
School. Id. at ¶ 57. NO “doesn’t want to attend school” due to issues caused by mask-
wearing. Id. at ¶ 59. Masks cause him physical discomfort, including “rashes and
irritation on the back of his ears from mask straps” and “chronic sore throats.” Id. at ¶¶
8
59, 62. “His mask gets saturated with saliva and becomes filthy from being touched all
day.” Id. at ¶ 60. He even “was forced to run over a mile in gym class” while wearing a
mask. Id. at ¶ 61. In addition to all that, masking has impacted NO’s “speech
development.” Id. at ¶ 58.
Lisa Reynolds is the parent of LR, a seventh-grader who attends Portville
Elementary School. Id. at ¶ 67. On January 25, 2022, “LR was suspended . . . for not
wearing a mask.” Id. at ¶ 68.
Phillip Slater is the parent of SS, a sixth-grader who attends Seneca Elementary
School. Id. at ¶ 71. On January 25, 2022, SS was sent to the principal’s office and was
“hassled” because she did not wear a mask. Id. at ¶ 72. Slater eventually picked her
up from school that day. Id.
Tia Billyard is the parent of three children in the Olean City School District: EB, a
third-grader; EB, a first-grader; and AB, a kindergartener. Id. at ¶ 77. EB 7 “has had
breathing difficulties with [] masks due to asthma,” but the school “responded [to those
difficulties] with indifference.” Id. at ¶ 78. The complaint does not allege that Billyard’s
other children encountered any specific issues with masking. See generally Docket
Item 1.
Bianca Federowicz is the parent of BF, who attends Portville Central School. Id.
at ¶ 38. The complaint does not allege that BF encountered any specific issues with
7 The complaint does not specify whether the EB who has breathing difficulties is
the first-grader or the third-grader.
9
D. Erie County Parents and Students
The following plaintiffs are parents of children who attend public schools in Erie
County:
James Lewis is the parent of two children in the Hamburg Central School District:
TL, an eighth-grader; and AL, a sixth-grader. Id. at ¶ 55. On January 25, 2022, “TL
was told he could not attend school . . . without a mask.” Id. at ¶ 56. The complaint
does not allege that AL encountered any specific issues with masking. See generally
Docket Item 1.
Adam Sabadasz is the parent of two students who attend Armor Elementary
School: CS, a first-grader; and IS, a kindergartener. Id. at ¶ 69. On January 25, 2022,
his children’s principal denied them “entrance to the school,” presumably because they
did not have masks. Id. at ¶ 70.
Christina Velez-Uebelhoer is the parent of three children in the Iroquois School
District: MQ, a tenth-grader; MQ, a ninth-grader; and MQ, a sixth-grader. Id. at ¶ 73.
Velez-Uebelhoer “pulled” her children out of school “because of the mask requirement
but intend[ed] to re-enroll them if it [wa]s vacated.” Id.
Deborah Wagner is the parent of NB, an eighth-grader who attends Iroquois High
School. Id. at ¶ 74. “NB has been hassled over masks and has suffered from infections
due to wearing a mask.” Id. at ¶ 75.
Adam Gray is the parent of four students in the Kenmore-Tonawanda School
District: AG, a seventh-grader; AG, a third-grader; JG, a first-grader; and CG, a first-
grader. Id. at ¶ 39. The complaint does not allege that any of Gray’s children
encountered any specific issues with masking. See generally Docket Item 1.
10
E. Monroe County Parent and Student
Bonnie Gary is the parent of GG, a tenth-grader who attends Spencerport High
School. Id. at ¶ 41. The complaint does not allege that GG encountered any specific
issues with masking. See generally Docket Item 1.
F. Chautauqua County Parent and Student
Carol Wynham is the parent of SW, a tenth-grader who attends Southwestern
High School. Id. at ¶ 76. The complaint does not allege that SW encountered any
specific issues with masking. See generally Docket Item 1.
THE DISPUTE
I. THE HARM TO THE PLAINTIFFS’ CHILDREN
When the plaintiffs’ children were required to wear masks at school, they “had
difficulty communicating and receiving communication.” Id. at ¶ 113. “Moreover, many
of them have suffered from physical symptoms including headaches and psychological
effects such as anxiety.” Id.
In addition to alleging specific harms suffered by their children, the plaintiffs
allege that mask-wearing causes “general harm to all students.” Id. at 20 (capitalization
omitted). For example, they say, masks inhibit students’ social development by
impairing students’ ability to communicate and bond with their fellows. Id. at ¶¶ 129-61,
182-90. Mask-wearing also can interfere with a child’s education by making it difficult to
learn by imitation; this can particularly impact special-needs children. Id. at ¶¶ 162-82.
Additionally, masking can cause mental health issues. Id. at ¶¶ 183-99. And, the
11
plaintiffs allege, masks can cause difficulty breathing and other physical problems. Id.
at ¶¶ 202-17.
II. THE DEFENDANTS’ “JUSTIFICATION”
The plaintiffs allege that the defendants imposed mask mandates to “stop[] the
transmission of [COVID]-19,” which the defendants believe “represents an abnormal
and unparalleled threat of death or disability to school[-]aged children.” Id. at ¶¶ 218-
222. But according to the plaintiffs, COVID-19 “does not represent an abnormal and
unparalleled threat of death or disability to school[-]aged children,” and “[m]asks are
ineffective at stopping the transmission of [COVID]-19.” Id. at ¶¶ 223-24; see also id. at
¶¶ 240-89 (alleging “that COVID-19 currently does not represent an emergency or
abnormal threat” and that masks are not “an effective way to stop the transmission of
COVID-19” (some capitalization omitted)). In other words, the plaintiffs say that masks
are both unnecessary and inefficient.
PROCEDURAL BACKGROUND
On February 8, 2022, the plaintiffs commenced this action alleging the violations
of their and their children’s rights mentioned above and addressed below. Docket Item
1. They seek: (1) a declaration that the mask mandate is unconstitutional and therefore
void; (2) preliminary and permanent injunctions enjoining the defendants from enforcing
the mask mandate; (3) compensatory damages; (4) punitive damages; and (5) all costs
and disbursements incurred in the prosecution of this action, including attorneys’ fees.
Id. at 45.
12
On March 3, 2022, some of the superintendent defendants—Hasenauer, Swann,
Stopinski, Baumann, Geelan, and Breidenstein—moved to dismiss the complaint.
Docket Item 30. On March 17, 2022, the plaintiffs responded, Docket Item 47, and on
March 24, 2022, the moving defendants replied, Docket Item 50.
On March 8, 2022, Siracuse, another superintendent defendant, moved to
dismiss the complaint. Docket Item 35. On April 18, 2022, the plaintiffs responded,
Docket Item 51-1, and on April 27, 2022, Siracuse replied, Docket Item 56.
On May 11, 2022, another group of superintendent defendants—Cimato, Cornell,
Croft, Donahue, and Scofield—moved to dismiss the complaint. Docket Item 64. On
May 25, 2022, the plaintiffs responded, Docket Item 75, and on June 1, 2022, the
moving defendants replied, Docket Item 78.
On May 12, 2022, the Erie County defendants moved to dismiss the complaint.
Docket Item 68. On May 26, 2022, the plaintiffs responded. Docket Item 76. The Erie
County defendants did not reply.
On May 13, 2022, the state defendants moved to dismiss the complaint. Docket
Item 72. On May 27, 2022, the plaintiffs responded. Docket Item 77. The state
defendants did not reply.
On June 10, 2022, Simon, the remaining superintendent defendant, moved to
dismiss the complaint. Docket Item 79. On June 24, 2022, the plaintiffs responded,
Docket Item 80, and on June 30, 2022, Simon replied, Docket Item 81.
LEGAL STANDARD
“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.’” Ashcroft
13
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
DISCUSSION
The plaintiffs assert claims under 42 U.S.C. § 1983. Docket Item 1. “To state a
valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct
(1) was attributable to a person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the
United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing
Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “Section 1983 itself creates
no substantive rights; it provides only a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing
City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
Because many of the motions to dismiss assert identical grounds for dismissal—
indeed, many of the defendants explicitly incorporate the arguments of their co-
defendants, see Docket Item 35-3 at 3; Docket Item 68-4 at 2; Docket Item 72-1 at 23;
Docket Item 79-4 at 21—this Court organizes its analysis based on the defendants’
arguments rather than by their separate motions. 8
8This Court does not address the failure-to-exhaust argument raised by Simon, a
superintendent defendant. See Docket Item 79-4 at 10-11, 13-14. That argument
14
I. ARTICLE III ISSUES
“Article III of the United States Constitution provides that the judicial power of the
United States extends to certain ‘cases’ and ‘controversies.’” Stagg, P.C. v. U.S. Dep’t
of State, 983 F.3d 589, 601 (2d Cir. 2020). “The case-or-controversy requirement of
Article III encompasses both the requirement that the plaintiff establish standing to sue
and the related doctrine of mootness.” Id.
A. Standing
“To establish standing, ‘the plaintiff must have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.’” Carlone v. Lamont, 2021 WL 5049455,
at *2 (2d Cir. Nov. 1, 2021) (summary order) (alteration omitted) (quoting Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016)). “An injury in fact ‘must be concrete and
particularized, as well as actual or imminent,’ rather than ‘conjectural or hypothetical.’”
Id. (quoting Carney v. Adams, 141 S. Ct. 493, 498 (2020)). The state defendants argue
that the plaintiffs lack standing to challenge the mask mandate. Docket Item 72-1 at 11-
12. The plaintiffs do not respond to that argument. See Docket Item 77.
Several courts have found that plaintiffs challenging mask mandates do not have
standing to do so. But in those cases, the plaintiffs did not allege that they actually were
required to wear masks. See, e.g., Carlone, 2021 WL 5049455, at *3 (“[T]he complaint
does not state that [the plaintiff] has ever actually been required to wear a mask or has
applies to the claims brought by only one plaintiff, and the Court finds it unnecessary to
reach that argument in light of the numerous other grounds for dismissal. For similar
reasons, this Court does not address some defendants’ arguments that they were not
properly served. See Docket Item 30-5 at 15-17.
15
been subject to enforcement of the mask mandate.”); Davis v. de Blasio, 2021 WL
4521878, at *2 (E.D.N.Y. Oct. 4, 2021) (“Here, plaintiff, a resident of Maryland, has
failed to allege facts to show how she is personally affected by the New York City mask
mandate.”). On the other hand, at least one court has found that a parent of a child had
standing to challenge a mask mandate requiring the child to mask at school. See
Donohue v. Hochul, 2022 WL 673636, at *4 (S.D.N.Y. Mar. 7, 2022) (noting that the
complaint alleged that the child “ha[d] difficulty communicating” and that wearing a mask
“would further inhibit her speech progress” and cause her to have “maladaptive
behaviors”).
The students in this case were required to wear masks to attend school. See
Docket Item 1 at ¶¶ 22-78. Some suffered physical issues related to masks, while
others were suspended when they refused to comply with the mask mandate. See id.
Those specific allegations establish an injury in fact that satisfies Article III’s standing
requirements, see Donohue, 2022 WL 673636, at *4, and the plaintiffs therefore have
standing to challenge the mask mandate.
B. Mootness
The “uncontroverted core” of Article III’s cases-and-controversies limitation is “the
principle that, at all times, the dispute before the court must be real and live, not
feigned, academic, or conjectural.” Russman v. Bd. of Educ. of Enlarged City Sch. Dist.
of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). So “[w]hen the issues in dispute
between the parties are no longer ‘live,’ a case becomes moot and the court—whether
trial, appellate, or Supreme—loses jurisdiction over the suit, which therefore must be
16
dismissed.” Lillbask v. Conn. Dep’t of Educ., 397 F.3d 77, 84 (2d Cir. 2005) (internal
citations and quotation marks omitted).
But “[t]he Supreme Court has ‘recognized an exception to the general rule
regarding mootness . . . in cases that are capable of repetition, yet evading review.” Id.
at 84-85 (alteration omitted) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)). That
exception “applies only in exceptional situations where two circumstances are
simultaneously present: (1) the challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there is a reasonable expectation
that the same complaining party would be subjected to the same action again.” Id. at 85
(alterations, citations, and internal quotation marks omitted); see also Granite State
Outdoor Advert., Inc. v. Town of Orange, 303 F.3d 450, 451 (2d Cir. 2002) (“The
voluntary cessation of allegedly illegal activities will usually render a case moot ‘if the
defendant can demonstrate that (1) there is no reasonable expectation that the alleged
violation will recur and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.’” (citation omitted)). “To create a
reasonable expectation of recurrence, repetition must be more than theoretically
possible”; “[m]ere speculation that the parties will be involved in a dispute over the same
issue” is not sufficient. Russman, 260 F.3d at 120 (citation omitted). 9
9 Courts have noted that a “‘highly selective’ discontinuance of enforcement” can

“support the exercise of jurisdiction” when a defendant has ceased allegedly illegal
conduct, see Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59
(2d Cir. 1992) (quoting Soto-Lopez v. N.Y.C. Civil Serv. Comm’n, 840 F.2d 162, 168 (2d
Cir. 1988)), but the plaintiffs have not alleged selective discontinuance of enforcement
here.
17
Consistent with the general “capable of repetition, yet evading review” exception,
the Supreme Court has “provided the relevant legal framework for assessing mootness
in COVID restriction lawsuits.” Hopkins Hawley LLC v. Cuomo, 2021 WL 1894277, at
*3-4 (S.D.N.Y. May 11, 2021). More specifically, it has “articulate[d] two [COVID-19-
specific] mootness principles . . . : (1) a lawsuit brought against COVID restrictions is
not simply moot because the restrictions at issue have been rescinded; and (2) if the
COVID restrictions . . . have been rescinded in the course of litigation, the relevant
inquiry is whether the plaintiff remains under a ‘constant threat’ of those restrictions
being reintroduced in the future.” Id. (citing Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 68 (2020); Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021));
see also Floyd v. Filipowski, 2022 WL 2657173, at *4-5 (S.D.N.Y. July 8, 2022)
(identifying and applying the same “mootness principles”); Jones v. Cuomo, 542 F.
Supp. 3d 207, 215-16 (S.D.N.Y. 2021) (same).
The defendants argue that the plaintiffs’ claims for injunctive relief are moot
because the mask mandate was rescinded on March 2, 2022. 10 Docket Item 30-5 at
17-18; Docket Item 35-3 at 2; Docket Item 66 at 20-21; Docket Item 68-4 at 5; Docket
Item 72-1 at 10; Docket Item 79-4 at 9-10. The plaintiffs concede that the mask
mandate was rescinded, but they argue that their claims for injunctive relief are not
moot because the mask mandate “could be reinstated any time”—indeed, even “at the
10 Some defendants argue that the entire case is moot. See Docket Item 35-3 at
2; Docket Item 72-1 at 10; Docket Item 79-4 at 9. But even though the mask mandate
has been rescinded, the plaintiffs’ claim for damages presents a live controversy. See
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 77 (2013) (“[A] claim for damages
cannot evade review; it remains live until it is settled, judicially resolved, or barred by a
statute of limitations.”).
18
whim of the authorities.” Docket Item 47 at 2-4; Docket Item 75 at 1-4. This Court
agrees with the defendants: under both traditional mootness analysis and the COVID-
19-specific mootness framework laid out by the Supreme Court, the plaintiffs’ claims for
injunctive relief are moot.
First, the plaintiffs have not shown that there is a “reasonable expectation” that
the defendants will reimplement a mask mandate, as is required to invoke the “capable
of repetition, yet evading review” rule. See Lillbask, 397 F.3d at 85. The plaintiffs cite
no evidence—such as statements from the defendants—to support their fear that the
mask mandate will be reimposed. See Docket Items 47 and 75. Rather, they argue
that the defendants “have never indicated that [the] mask mandate[] cannot be
reimposed,” Docket Item 47 at 2 (emphasis added); Docket Item 75 at 1-2 (emphasis
added), and they cite a statement from Dr. Anthony Fauci, who is not a defendant in this
case, Docket Item 47 at 2; Docket Item 75 at 1-2. None of that suggests that the
defendants intend to reimplement a mask mandate. 11 Cf. Harrison, 981 F.2d at 59
(noting that an “announced intention to return to the conduct of the past” can “support
the exercise of jurisdiction” (citation and internal quotation marks omitted)).
For similar reasons, the plaintiffs have not shown that they “remain[] under a
‘constant threat’” that the mask mandate will be reimposed, as the Supreme Court has
suggested is necessary to establish a live controversy when a COVID-19 restriction is
rescinded. See Hopkins Hawley, 2021 WL 1894277, at *3-4 (quoting Roman Catholic
Diocese, 141 S. Ct at 68)). The plaintiffs do not allege that the mask mandate has been
11The fact that nearly a year has passed since the mask mandate was rescinded
without being reimposed lends further support to that conclusion.
19
reimplemented since it was lifted nearly a year ago. And given the current state of the
pandemic, this Court finds that there is no reasonable threat—let alone a constant
threat—that the mandate will be reimposed.
In short, the plaintiffs’ fear that a mask mandate will be reinstituted is speculative.
Of course, it is impossible to say that such a mandate will never be issued again. But
the theoretical possibility that a mask mandate may someday be reimposed does not
establish a reasonable expectation or constant threat of that possibility.
The plaintiffs’ claims for injunctive relief therefore are dismissed as moot.
II. FAILURE TO STATE A CLAIM
A. First Amendment Claims
The plaintiffs assert that the mask mandate violated their children’s rights under
the First Amendment. Docket Item 1 at ¶ 294. The defendants argue that the complaint
states neither a free speech claim nor a freedom of association claim. Docket Item 30-5
at 18-20; Docket Item 66 at 25-32; Docket Item 72-1 at 15-17; Docket Item 79-4 at 15.
The plaintiffs respond that the defendants “provide no binding or persuasive authority”
on either point, but they do not otherwise substantively address the defendants’
arguments. Docket Item 47 at 13-14; Docket Item 75 at 13. This Court finds the
defendants’ reasoning persuasive and agrees that the plaintiffs have not plausibly
alleged a First Amendment violation.
1. Free Speech
“The Free Speech Clause [of the First Amendment] restricts government
regulation of private speech.” Pleasant Grove City v. Summum, 555 U.S. 460, 467
(2009). But it “does not prevent restrictions directed at . . . conduct from imposing
20
incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011);
see also Texas v. Johnson, 491 U.S. 397, 407 (“[W]here speech and nonspeech
elements are combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.” (internal quotation marks omitted) (quoting
United States v. O’Brien, 391 U.S. 367, 376 (1968))).
Accordingly, “a conduct-regulating statute of general application that imposes an
incidental burden on the exercise of free speech rights does not implicate the First
Amendment.” Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 209
(2d Cir. 2004) (citing Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 (1986)); see also
L.T. v. Zucker, 2021 WL 4775215, at *4 (N.D.NY. Oct. 13, 2021) (“[T]he First
Amendment is only implicated where the conduct a plaintiff claims is protected speech
is also the conduct directly regulated by the government action.”). “Rather, an
infringement on speech only implicates the First Amendment . . . if conduct with a
‘significant expressive element’ drew the legal remedy or the government action ‘has
the inevitable effect of singling out those engaged in expressive activity.’” L.T., 2021
WL 4775215, at *5 (quoting Arcara, 478 U.S. at 706-07).
The plaintiffs argue that the mask mandate violated their children’s free speech
rights. Docket Item 1 at ¶ 294. But they do not argue that mask-wearing—or refusing
to wear a mask—is itself expressive conduct entitled to First Amendment protection.
See generally Docket Item 1. Instead, they argue that masks “suppress and conceal
facial expressions,” which “are a form of communication” used to express oneself and to
21
“decode [others’] emotional states or reactions.” Id. at ¶¶ 130-31, 134. That argument
misses the mark.
First, the mask mandate was issued to regulate conduct—mask-wearing—not to
regulate communication via facial expression. So it was a “a conduct-regulating”
mandate “of general application” that perhaps “impose[d] an incidental burden on the
exercise of free speech.” See Kerik, 356 F.3d at 209. Second, it did not “singl[e] out
those engaged in expressive activity,” see L.T., 2021 WL 4775215, at *5; rather, it
applied to almost all “state residents” who were present in public places, Docket Item 1
at ¶¶ 117-19. Therefore, even if the mask mandate incidentally affected the children’s
ability to communicate, it did not implicate the Free Speech Clause. See Kerik, 356
F.3d at 209. 12
The plaintiffs’ free speech claim therefore is dismissed.
2. Freedom of Association
The First Amendment also “protects one’s ‘freedom of expressive association’—
that is, ‘[the] right to associate for the purpose of engaging in those activities protected
by the First Amendment.’” Emilee Carpenter, LLC v. James, 575 F. Supp. 3d 353, 371
(W.D.N.Y. 2021) (alteration in original) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609,
618 (1984)). But as it may with respect to free speech, the “government may engage in
12 The defendants argue in the alternative that facial expressions are not speech
that is entitled to First Amendment protection, Docket Item 30-5 at 20, Docket Item 66 at
27-28, and that the mask mandate did not actually impact the wearers’ ability to
communicate, Docket Item 66 at 25-26. Because this Court holds that the mask
mandate does not implicate the Free Speech Clause, it does not reach those
arguments.
22
some conduct that incidentally inhibits protected forms of association.” Fighting Finest,
Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996).
The plaintiffs allege that the mask mandate violates their children’s freedom of
association. Docket Item 1 at ¶ 294. But several courts considering mask mandates
have rejected identical claims. See, e.g., Fradys v. Rondeau, 2022 WL 1289674, at *3
(S.D.N.Y. Apr. 29, 2022) (“Courts have held correctly that mask requirements do not
violate the First Amendment because . . . [they] impose[] at most a de minimis burden
on [an] individual’s ability to associate.” (italicization added)); Donohue, 2022 WL
673636, at *8 (noting that “the complaint lacks any facts suggesting that the mask
mandate burdens a student’s ability to enter into and maintain certain intimate or private
relationships” (citation and internal quotation marks omitted)); see also Denis v. Ige, 538
F. Supp. 3d 1063, 1080 (D. Haw. 2021) (“The Mask Mandates allow anyone to freely
assemble and associate as long as they are socially distanced or wearing a mask.
They therefore do not prohibit assemblies, but instead place a minor restriction on the
way they occur.” (alterations, citations, and internal quotation marks omitted)).
While the plaintiffs are correct that those cases are not binding authority, this
Court nevertheless agrees with their reasoning: “mask requirements do not violate the
First Amendment because a requirement that individuals weak a mask in a place where
people gather imposes at most a de minimis burden on [an] individual’s ability to
associate.” See Fradys, 2022 WL 1289674, at *3 (italicization added). What is more,
the plaintiffs plead few facts to support their freedom of association claim. One plaintiff
says that her children were “not allowed to play tag or be near each other at recess.”
Docket Item 1 at ¶ 29. A few others allege that their children were kept separate from
23
other students. Id. at ¶¶ 26, 114. But those restrictions were imposed only because the
plaintiffs’ children refused to wear masks—again, a de minimis burden on the right to
associate. And the plaintiffs do not claim that their children were not permitted to
associate or assemble even if masked. See Docket Items 1, 47, 75.
The plaintiffs’ freedom of association claim therefore is dismissed.
B. Guarantee Clause
The Guarantee Clause provides that the United States “shall guarantee to every
State in this Union a Republican Form of Government.” U.S. Const. art. IV, § 4. It
typically “is invoked . . . to challenge an action of the federal government,” Lewis v.
Cuomo, 2021 WL 5827274, at *9 (W.D.N.Y. Dec. 8, 2021); “[c]hallenges to state action
premised on violations of the Guarantee Clause traditionally present nonjusticiable
political questions,” 13 Futia v. Westchester Cnty. Bd. of Legislators, 2020 WL 4570494,
at *6 (S.D.N.Y. Aug. 6, 2020) (citing Rucho, 139 S. Ct. at 2506 (“This Court has several
times concluded . . . that the Guarantee Clause does not provide the basis for a
justiciable claim.”)); see also Lewis, 2021 WL 5827274, at *9 (“The [] Supreme Court
and other courts have typically found that ‘[G]uarantee [C]lause’ challenges to state
action involve non[]justiciable political questions.” (collecting cases)). Some courts,
however, have noted that although the Supreme Court “has not yet been presented with
a justiciable claim,” it has left open the possibility that a Guarantee Clause challenge to
13A nonjusticiable political question arises when “the judicial department has no
business entertaining [a] claim of unlawfulness[ ]because the question is entrusted to
one of the political branches or involves no judicially enforceable rights.” Rucho v.
Common Cause, 139 S. Ct. 2484, 2494 (2019) (quoting Vieth v. Jubelirer, 541 U.S. 267,
277 (2004) (plurality opinion)). Such questions are “outside the courts’ competence and
therefore beyond the courts’ jurisdiction.” Id.
24
action by a state may be justiciable in some circumstances. See, e.g., Democratic
Party of Wis. v. Vos, 966 F.3d 581, 588-89 (7th Cir. 2020).
The plaintiffs allege that the defendants violated the Guarantee Clause when the
state legislature improperly delegated “the power to issue directives” to the “executive
branch.” Docket Item 1 at ¶¶ 302-11. The defendants argue that this claim raises a
nonjusticiable political question. Docket Item 30-5; Docket Item 66 at 25; Docket Item
72-1 at 17-18; Docket Item 79-4 at 16. In response, the plaintiffs say that this Court is
not bound by precedent addressing the justiciability of Guarantee Clause claims
because the facts of this case are unique and present “a case of first impression.”
Docket Item 47 at 7-11.
But this Court agrees with the defendants and “declines to find that this is one of
the rare cases in which a Guarantee Clause claim might be justiciable.” See Lewis,
2021 WL 5827274, at *9. There is nothing about the defendants’ conduct in this case
that is inconsistent with a “Republican Form of Government,” and the plaintiffs’
Guarantee Clause claim does nothing more than ask this Court to interfere in an issue
entrusted to the other branches of government. Moreover, the plaintiffs’ assertion that
“[t]here are no cases concerning the Guarantee Clause that remotely resemble these
facts,” Docket Item 47 at 9, is belied by Lewis, a COVID-19 restriction case in which the
court held that the New York State legislature’s delegation of emergency powers to the
governor was a nonjusticiable political question, 2021 WL 5827274, at *9. 14
14 The plaintiffs’ counsel in this case has acknowledged that he was “a plaintiff
[him]self and the plaintiffs’ counsel” in Lewis, see Docket Item 75 at 4, where he
advanced a similar Guarantee Clause argument. Compare Docket Item 47 at 7
(arguing that the Guarantee Clause “has been largely ignored for 200 years” and that “it
is time to dust [it] off . . . and enforce it”); 9 (“There are no cases concerning the
25
Based on the court’s reasoning in that case, and because the plaintiffs provide
no reason for this Court to depart from the general rule that Guarantee Clause
challenges to state action are nonjusticiable, the plaintiffs’ Guarantee Clause claim is
dismissed.
C. Supremacy Clause
The plaintiffs allege that the mask mandate violated provisions of the Federal
Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 360bbb-3, and federal regulations
issued by the Food and Drug Administration, 21 C.F.R. § 50.20, and thus violated the
Supremacy Clause. Docket Item 1 at ¶¶ 312-30. The defendants argue that the
Supremacy Clause does not create a private right of action, Docket Item 30-5 at 25-26;
Docket Item 66 at 40-41; Docket Item 72-1 at 20-21; Docket Item 79-4 at 18. The
plaintiffs do not respond to that argument. See Docket Items 47, 75-77, 80.
The Supremacy Clause “is not the source of any federal rights, and certainly
does not create a cause of action.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.
320, 324-25 (2015) (citations and internal quotation marks omitted). It therefore does
not grant the plaintiffs the power to enforce federal laws or regulations, including the
FDCA. In fact, the FDCA explicitly provides that only the federal government—and in
rare circumstances, state governments—may bring an action to enforce it. 21 U.S.C. §
337; see also Frei v. Taro Pharms. U.S.A., Inc., 443 F. Supp. 3d 456, 468 (S.D.N.Y.
Guarantee Clause that remotely resemble these facts.”), with Lewis, 2021 WL 5827274,
at *9 (“Plaintiffs merely urge the Court to reject the non-justiciability argument since
‘[t]here are no cases concerning the Guarantee Clause that remotely resemble these
facts.’ Indeed, [p]laintiffs contend that ‘it is time to dust off the Guarantee Clause and
enforce it,’ since it ‘has been largely ignored for 200 years.’”).
26
2020) (“[T]he FDCA does not provide a private right of action for a defendant’s violation
of its provisions.”). And because the statute under which a regulation is promulgated
dictates whether a private right of action can enforce that regulation, Lussoro v. Ocean
Fin. Fed. Credit Union, 456 F. Supp. 3d 474, 492-93 (E.D.N.Y. 2020), 21 C.F.R. § 50.20
does not create a private right of action either, see 21 C.F.R § 50.1 (“This part applies to
all clinical investigations regulated by the Food and Drug Administration under . . . the
[FDCA].”). 15
The plaintiffs’ Supremacy Clause claim therefore is dismissed.
D. Fourth Amendment Claim: Unlawful Seizure
The Fourth Amendment protects an individual from unreasonable seizure of his
or her person. California v. Hodari D., 499 U.S. 621, 624 (1991). It “applies when []
‘objectionable conduct occur[s] in the context of a criminal investigation or other form of
governmental investigation or activity.’” Masciotta v. Clarkstown Cent. Sch. Dist., 136 F.
Supp. 3d 527, 537 (S.D.N.Y. 2015) (alterations omitted) (quoting Poe v. Leonard, 282
F.3d 123, 136 (2d Cir. 2002)). A seizure of the person occurs when a government
official, “by means of physical force or [a] show of authority, in some way restrains the
liberty of a citizen.’” Edrei v. City of New York, 254 F. Supp. 3d 565, 573 (S.D.N.Y.
15 What is more, the plaintiffs’ argument may well fail substantively because it
hinges on the mask mandate’s being a clinical investigation. See Docket Item 1 at ¶¶
323-29 (alleging that “the mask remains in the clinical investigation stage” in terms of its
effectiveness at preventing the spread of COVID-19 and that the mask mandate thus
“violates federal law and regulations governing the administration of experimental
medicine”). This Court is not convinced that the mask mandate is a “clinical
investigation” within the meaning of federal law and regulations. See Doe v. Franklin
Square Union Free Sch. Dist., 568 F. Supp. 3d 270, 293 (E.D.N.Y. 2021) (“The Mask
Mandate is not an experiment or clinical trial; it is a school safety measure.”).
27
2017) (alterations omitted) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)); see also
Torres v. Madrid, 141 S. Ct. 989, 998 (2021) (“A seizure requires the use of force with
intent to restrain.” (emphasis in original)).
The plaintiffs allege that the mask mandate constituted an unlawful seizure in
violation of the Fourth Amendment because it violated their children’s “clearly
established rights to liberty and personal security.” Docket Item 1 at ¶¶ 298-99. The
defendants argue that the plaintiffs have failed to state a claim under the Fourth
Amendment because they have not alleged that their children were seized in any way.
Docket Item 30-5 at 23-25; Docket Item 66 at 32-33; Docket Item 72-1 at 19-20; Docket
Item 79-4 at 18. The plaintiffs respond that the mask mandate is “a massive violation of
[their children’s] physical integrity, along the lines of a bodily seizure,” and that “this is
essentially a case of first impression.” Docket Item 47 at 11-13; Docket Item 75 at 11-
13. This Court again agrees with the defendants.
As a threshold matter, the plaintiffs’ argument that the mask mandate itself is “a
massive violation of [their children’s] physical integrity,” Docket Item 47 at 11, belongs in
the context of a substantive due process claim—which is where this Court addresses it,
see infra at 32-34. So the plaintiffs’ unlawful seizure claim must rest on the ways in
which they allege the defendants restrained their children’s freedom of movement: by
physically isolating them from their classmates. See, e.g., Docket Item 1 at ¶¶ 26, 72.
At least one court in this Circuit has rejected an unlawful seizure claim in the
context of a mask mandate. See Donohue, 2022 WL 673636, at *8 (concluding that the
plaintiffs “have not alleged any facts raising an inference that [the d]efendants ever
made a seizure” by imposing a mask mandate); see also Reinoehl v. Whitmer, 2022 WL
28
1110273, at *3 (W.D. Mich. Feb. 3, 2022), report and recommendation adopted, 2022
WL 855266 (W.D. Mich. Mar. 23, 2022) (noting that the mask mandate in question
“does not authorize, or purport to authorize, the unlawful search or seizure of any
person not wearing a mask”). This Court finds the reasoning in Donohue persuasive:
like the plaintiffs in that case, the plaintiffs here have not alleged that the defendants
conducted a seizure within the meaning of the Fourth Amendment.
Typically, cases finding that a Fourth Amendment seizure occurred in a public
school involve situations where a student feels that his or her liberty is restrained
because he or she was under investigation. See, e.g., Phillips v. County of Orange, 894
F. Supp. 2d 345, 363 (S.D.N.Y. 2012) (holding that a five-year-old student was seized
when she “was removed from her class by a school administrator, taken to a room with
three adults with the door closed, told that she ‘had to’ answer their questions, and [told]
that the examination was ‘like a test’”); Stoot v. City of Everett, 582 F.3d 910, 918 (9th
Cir. 2009) (holding that an in-school interview of a student suspecting of committing
child abuse was a seizure under the Fourth Amendment); Shuman v. Penn Manor Sch.
Dist., 422 F.3d 141, 146-47 (3d Cir. 2005) (holding that a student was seized when the
assistant principal questioned him about allegations of sexual misconduct and then did
not allow him to return to class for several hours); accord Poe, 282 F.3d at 136 (noting
that the Fourth Amendment applies in “a criminal investigation or other form of
governmental investigation or activity”). 16 But the plaintiffs here do not allege that their
16 There was no investigation when the court found that a seizure had occurred in
Bisignano v. Harrison Cent. Sch. Dist., 113 F. Supp. 2d 591, 596 (S.D.N.Y. 2000), but
that case involved extreme facts that are not analogous to the plaintiffs’ allegations in
this action: in Bisignano, a student found a twenty-dollar bill on the floor and her teacher
shut her in an equipment closet when she would not give him the money. Id. at 593-94.
29
children were subject to any investigatory seizure because they would not wear masks.
See generally Docket Item 1. Rather, they allege that their children were suspended or
segregated—not seized or restrained—when they refused to comply with the mask
mandate. 17
In sum, the plaintiffs have not plausibly alleged that the defendants used
“physical force or [a] show of authority” to “restrain [their children’s] liberty.” See Terry,
392 U.S. at 19 n.16. Although school officials separated the plaintiffs’ children from
their classmates, they did not plausibly do so “with intent to restrain” the children’s
liberty. See Torres, 141 S. Ct. at 998 (emphasis omitted). In fact, the students were
free to return to class—so long as they wore masks, a de minimis burden. The plaintiffs
therefore have not plausibly alleged that the defendants seized their children by way of
the mask mandate.
For that reason, the plaintiffs’ Fourth Amendment claim is dismissed.
E. Fourteenth Amendment Claims 18
1. Substantive Due Process
“The Due Process Clause of the Fourteenth Amendment embodies a substantive
component that protects against certain government actions regardless of the fairness
17 Although some students may have been sent to the principal’s office, that is no
different than what might be done for a non-mask-related rule infraction. And the public
school system would cease to function if any student sent to the principal’s office or
suspended for violating school policies could bring an unlawful seizure claim. What is
more, that “discipline” likely was not intended to punish the students who refused to
mask, but to ensure the safety of their classmates and school staff by preventing the
spread of COVID-19.
To the extent that the plaintiffs assert a Fifth Amendment due process claim,
18
see Docket Item 1 at ¶¶ 300-01, 310-11, that claim is dismissed because “the Due
Process Clause of the Fifth Amendment applies only to actions by the United States
30
of the procedures used to implement them.” Franklin Square, 568 F. Supp. 3d at 288-
89 (alterations and internal quotation marks omitted) (quoting Immediato v. Rye Neck
Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996)). In other words, “[s]ubstantive due process
‘is the right to be free of arbitrary government action that infringes a protected right.’”
Montalbano v. Port Auth. of N.Y. & N.J., 843 F. Supp. 2d 473, 483 (S.D.N.Y. 2012)
(emphasis omitted) (quoting O’Connor v. Pierson, 426 F.3d 187, 200 n.6 (2d Cir.
2005)).
Generally, a government action that infringes a protected right “need only be
reasonably related to a legitimate state objective.” Franklin Square, 568 F. Supp. 3d at
289 (quoting Immediato, 73 F.3d at 461). But “when the [government action] infringes a
fundamental right, it must . . . be ‘narrowly tailored to serve a compelling state interest.’”
Id. (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). “A right is fundamental if it is
‘implicit in the concept of ordered liberty’ or ‘deeply rooted in this [n]ation’s history and
tradition.’” Id. (citations omitted).
The plaintiffs allege that the mask mandate violated their own and their children’s
basic rights and thus violated their rights to substantive due process. Docket Item 1 at
¶¶ 300-01; see id. at ¶¶ 295-96. More specifically, they allege that the mandate
infringed upon: (1) a child’s right not to wear a mask, id. at ¶¶ 300-01; and (2) a parent’s
right “to make decisions concerning the care, custody, and control of [his or her]
children” and to control those children’s education, id. at ¶¶ 295-96 (citations omitted).
The defendants say that the complaint fails to state a substantive due process claim on
government and federal employees,” see Solomon v. City of Rochester, 449 F. Supp.
3d 104, 113 (W.D.N.Y. 2020) (alteration and citations omitted)—not state or municipal
officials.
31
either count. Docket Item 30-5 at 20-22; Docket Item 66 at 33-40; Docket Item 72-1 at
18-19; Docket Item 79-4 at 17.
a. Right Not to Wear a Mask
The plaintiffs allege that “[r]equiring healthy children to wear masks six hours a
day, five days a week, ten months a year and indefinitely . . . without clear scientific
proof that such an unprecedented mandate provides the children themselves with a net
health benefit, violates substantive due process.” Docket Item 1 at ¶ 301. The
defendants respond that this argument is unavailing, Docket Item 30-5 at 18; Docket
Item 66 at 33-35; Docket Item 72-1 at 12-13, especially in light of Jacobson v.
Massachusetts, 197 U.S. 11 (1905), which “has been called ‘the controlling Supreme
Court precedent that squarely governs judicial review of rights-challenges to emergency
public health measures” in the context of COVID-19, Lebanon Valley Auto Racing Corp.
v. Cuomo, 478 F. Supp. 3d 389, 396 (N.D.N.Y. 2020) (collecting cases).
In Jacobson, the Supreme Court rejected the plaintiff’s argument that a smallpox
vaccination mandate violated his substantive due process right to bodily autonomy.
Jacobson, 197 U.S. at 12, 26, 31-32. Rather, the Court said, the state’s police power
grants it the authority “to safeguard the public health and the public safety” by any
means that do not violate the Constitution—that is, by any means that are not “beyond
all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at
24-25, 31. As many courts have held since the onset of the COVID-19 pandemic,
Jacobson affirms a state’s power to impose regulations to benefit the public health—
even when those regulations impose some restraints on individuals. 19 See, e.g., Young
At its core, Jacobson is about the state’s power to protect the many by
19
imposing a small burden on the few who insist on invoking their personal freedom at the
32
v. James, 2020 WL 6572798, at *3-4 (S.D.N.Y. Oct. 26, 2020); Geller v. Cuomo, 476 F.
Supp. 3d 1, 15-16 (S.D.N.Y. 2020) (collecting cases); see also Jacobson, 197 U.S. at
26 (“This court has more than once recognized it as a fundamental principle that
persons and property are subjected to all kinds of restraints and burdens in order to
secure the general comfort, health, and prosperity of the state.” (citations and internal
quotation marks omitted)). 20
expense of their neighbors’ well-being. See generally John Stuart Mill, On Liberty, 9
(1859) (“[T]he only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others. His own
good, either physical or moral, is not a sufficient warrant.”). In this Court’s view, it is sad
that states need to exercise that power. But cases like Jacobson—and this one—
underscore that need.
20The plaintiffs take great umbrage with Jacobson’s resurgence in the COVID-19
era. See Docket Item 47 at 5-7; Docket Item 75 at 5-7. They argue that the Supreme
Court’s decision “is of no relevance to this case whatsoever” because it “deals with a
mandatory vaccine,” “deals with a statute,” and “heavily depends on centuries of
predominant and informed opinion about smallpox.” Docket Item 47 at 5-7; Docket Item
75 at 5-7. But those attempts to distinguish Jacobson do not address its holdings about
the scope of the state’s police power. Indeed, the plaintiffs do not cite any authority
suggesting that Jacobson’s applicability is limited to cases in which those three
criteria—or any of them—are met. See generally Docket Items 47 and 75.
The plaintiffs do cite Justice Gorsuch’s concurrence in Roman Catholic Diocese,

141 S. Ct. at 70-71, in which the plaintiff challenged COVID-19 restrictions that
incidentally burdened the right to the free exercise of religion. Docket Item 47 at 6-7;
Docket Item 75 at 6-7. Justice Gorsuch suggested that Jacobson might not apply when
a regulation impacts the “textually explicit right to religious exercise” for an indefinite
time. Roman Catholic Diocese, 141 S. Ct. at 70-71; see also Agudath Israel of Am. v.
Cuomo, 983 F.3d 620, 635 (declining to apply Jacobson in a free exercise case
because Jacobson “did not address the free exercise of religion” (citations omitted)).
But the plaintiffs here do not argue that the mask mandate interfered with their religious
practice even for the brief period of time when it was in effect. See generally Docket
Item 1.
The plaintiffs therefore provide no reason that this Court should not apply
Jacobson to the mask mandate, as many courts recently have done under similar
circumstances. See, e.g., Geller, 476 F. Supp. 3d at 15-16 (collecting cases).
33
Here, the mask mandate was imposed as a public health measure to combat the
spread of COVID-19. See Docket Item 1 at ¶¶ 218-22. Although the plaintiffs may
disagree with the effectiveness of the mandate from a public health perspective,
Jacobson affirms the state’s ability to weigh public health benefits and to impose such a
mandate. See also S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613,
1613-14 (2020) (Roberts, C.J., concurring) (noting that public health measures imposed
by the state “should not be subject to second-guessing by an unelected federal
judiciary, which lacks the background, competence, and expertise to assess public
health and is not accountable to the people” (citation and internal quotation marks
omitted)). Because requiring public school students to wear masks is not “beyond all
question, a plain, palpable invasion of rights secured by the fundamental law”—to the
contrary, this claim is comparable to the bodily autonomy argument the Supreme Court
rejected in Jacobson—the mask mandate passes muster. See Jacobson, 197 U.S. at
31; see also Franklin Square, 568 F. Supp. 3d at 288 (collecting cases “uniformly
f[inding] that public mask mandates do not implicate fundamental rights”).
The plaintiffs’ substantive due process claim based on their children’s right not to
wear masks therefore fails.
b. Parental Rights
The plaintiffs argue that the mask mandate violated their “fundamental right . . .
to make decisions concerning the care, custody, and control of their children” and to
control their children’s education. Docket Item 1 at ¶¶ 295-96 (citations omitted).
Courts have indeed recognized the existence of such a right. See, e.g., Troxel v.
Granville, 530 U.S. 57, 66 (2000) (collecting cases). But the scope of that right is not
limitless.
34
For example, the Second Circuit has noted that the cases recognizing parents’
rights to control their children’s education “do not begin to suggest the existence of a
fundamental right of every parent to tell a public school what his or her child will and will
not be taught.” Leebaert v. Harrington, 332 F.3d 134, 141 (2d Cir. 2003); see also
Runyon v. McCrary, 427 U.S. 160, 177 (1976) (suggesting that there is “no support [for]
the contention that parents may replace state educational requirements with their own
idiosyncratic views of what knowledge a child needs to be a productive and happy
member of society”). Indeed, if every parent could dictate what his or her child learns
and under what rules and regulations, the public school system could not function.
Perhaps for that reason, the Second Circuit has explicitly held that “rational basis review
is appropriate” when a parent invokes that right to challenge “a state regulation.”
Immediato, 73 F.3d at 461.
The claim that the mask mandate violated the plaintiffs’ parental rights therefore
is subject to rational basis review. Under that standard, “government action passes
muster ‘if there is any reasonably conceivable state of facts that could provide a rational
basis’” for that action. Franklin Square, 568 F. Supp. 3d at 292 (quoting Heller v. Doe,
509 U.S. 312, 319 (1993)). And there certainly is a rational basis for the mask mandate
here.
Indeed, many courts already have addressed this issue, and there is a large
body of case law holding that mask mandates survive rational basis review. See, e.g.,
id.; Donohue, 2022 WL 673636, at *10; see also Zinman v. Nova Se. Univ., Inc., 2021
WL 4025722, at *12 (S.D. Fl. Aug. 30, 2021) (collecting cases). This Court agrees with
those holdings: the reported benefits of masking—even if the plaintiffs disagree with
35
them altogether or think that masking is too high a price to pay for too little protection—
provide a rational basis for the mask mandate. 21
In sum, because it holds that a parent does not have a fundamental right to
decide that his or her child need not comply with a mandate requiring masking in public
schools during a pandemic, this Court applies rational basis review to evaluate the
mask mandate. It is not the only court to do so. See, e.g., Franklin Square, 568 F.
Supp. 3d at 291 (holding that a mask mandate “does not impinge upon any fundamental
right” because “[w]hat is true for curricular requirements is just as true for other
educational regulations like the [m]ask [m]andate”); Oberheim v. Bason, 565 F. Supp.
3d 607, 618-19 (M.D. Pa. 2021) (“[A]lthough parents possess a fundamental right to
raise their children without undue state interference, this right does not extend to the
[p]laintiffs’ decision to disregard the [s]chool [d]istrict’s policy by having their children
attend school without wearing masks.”). In fact, at least one court has held that even
vaccination requirements for public school children—surely, a deeper intrusion into a
parent’s control of his or her child than a mask mandate—do not implicate a parent’s
fundamental rights. See Doe v. Zucker, 520 F. Supp. 3d 217, 250 (N.D.N.Y. 2021).
Because there is a rational basis for the mask mandate, the plaintiffs’ substantive
due process claim based on their parental rights is dismissed.
21 Even if the mask mandates were subject to a higher level of constitutional

scrutiny, they might well make the grade. See Roman Catholic Diocese, 141 S. Ct. at
67 (“Stemming the spread of COVID-19 is unquestionably a compelling interest.”).
36
2. Procedural Due Process
The plaintiffs argue that the mask mandate also violated their children’s right to
procedural due process because the defendants lacked “jurisdiction to issue” it. Docket
Item 1 at ¶¶ 302-11 (alleging that “[t]he [l]egislature may not delegate its lawmaking
powers to the executive branch”). 22 The defendants argue that the complaint fails to
state a procedural due process claim. Docket Item 30-5 at 22-23; Docket Item 72-1 at
17; Docket Item 79-4 at 16. The plaintiffs’ only response to that argument is that the
defendants “misconceive of the plaintiffs’ challenge as one concerning classic
procedural due process” and that that the plaintiffs instead “complain about . . . the lack
of legislation at all and the enactment of drastic, sweeping[,] and unprecedented edicts
by executive fiat.” Docket Item 47 at 11; Docket Item 75 at 11. In other words, the
plaintiffs complain about the delegation of rulemaking authority and the exercise of
executive power—the same concerns that they raise in their Guarantee Clause claim,
see supra at 24-26. But the plaintiffs do not explain how those complaints state a
procedural due process claim. See generally Docket Items 47 and 75.
“[I]t is black letter law that a person is not entitled to procedural due process
protections against government action that is legislative in nature.” Hopkins Hawley,
518 F. Supp. 3d at 714 (citing Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S.
441, 445 (1915)). In the procedural due process context, the “legislative” label does not
refer to the government branch that took the challenged action; even an action taken by
the executive branch may be legislative in nature if it “has ‘general application’ and
The plaintiffs do not assert that the mask mandate otherwise violated
22
procedural due process. See generally Docket Item 1.
37
looks to the future.” Id. (citing Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 143
(2d Cir. 1994)); see, e.g., Bimber’s Delwood, Inc. v. James, 496 F. Supp. 3d 760, 782
(W.D.N.Y. 2020) (“Here, the challenged [e]xecutive [o]rders are legislative in nature.”);
Everest Foods Inc. v. Cuomo, 585 F. Supp. 3d 425, 438 (S.D.N.Y. 2022) (“[The
p]laintiffs do not plausibly allege a deprivation of their procedural due process rights
because [the d]efendants’ [executive orders] and [emergency executive orders] were
plainly legislative.”). A government action is “adjudicative,” on the other hand, if it is
“designed to adjudicate disputed facts in particular cases.” Interport Pilots Agency, 14
F.3d at 142. And a person has procedural due process protection against adverse
adjudicative—not legislative—actions. See Bimber’s Delwood, 496 F. Supp. 3d at 782.
Here, the mask mandate clearly was legislative in nature; it applied to public
school students—and others in public places—generally and was not “designed to
adjudicate disputed facts in particular cases.” See Interport Pilots Agency, 14 F.3d at
142-43. Furthermore, it applied “prospectively” and did not impose retroactive penalties
on anyone. See Hopkins Hawley, 518 F. Supp. 3d at 714 (rejecting a procedural due
process challenge to a COVID-19 restriction because the restriction was “legislative in
nature”); see also Donohue, 2022 WL 673636, at *8 (rejecting a procedural due process
challenge to a mask mandate because it “generally require[d] masking for teachers,
staff, students, and visitors in schools, going forward”).
The plaintiffs therefore have not stated a procedural due process claim, and that
claim is dismissed.
38
F. Ninth Amendment
The plaintiffs allege that the mask mandate violates their children’s rights under
the Ninth Amendment. Docket Item 1 at ¶¶ 300-01. But, as the defendants correctly
argue, Docket Item 66 at 24; Docket Item 72-1 at 19; Docket Item 79-4 at 17-18, the
Ninth Amendment is not “an independent source of individual rights,” Barnett v.
Carberry, 420 F. App’x 67, 69 (2d Cir. 2011) (summary order); see also Ortiz v. City of
New York, 2013 WL 5339156, at *4 (S.D.N.Y. Sept. 24, 2013) (“There is no private right
of action under the Ninth Amendment.”). In response, the plaintiffs say only that “the
Ninth Amendment is relevant to deciding whether the plaintiffs[] state a cause of action”
because the “right to breathe free” is “a natural right of every human being so obvious
that it never occurred to the Founders that they needed to list it in the Bill of Rights.”
Docket Item 75 at 16 (some capitalization omitted).
This Court interprets that response as arguing that the Ninth Amendment
bolsters the plaintiffs’ numerous assertions that the mask mandate violates their
children’s rights under other provisions of law, and as a concession that it does not
provide an independent cause of action. But to the extent that the plaintiffs seek to
raise any independent Ninth Amendment claims, those claims are dismissed because
the Ninth Amendment does not create a private right of action. See Barnett, 420 F.
App’x at 69.
III. INDIVIDUAL CAPACITY CLAIMS
The defendants assert two additional bases for dismissal of the individual-
capacity claims brought against them.
39
A. Failure to Allege Each Defendant’s Personal Involvement
“A plaintiff asserting a [section] 1983 claim against a supervisory official in his
individual capacity must allege that the supervisor was personally involved in the
alleged constitutional deprivation.” Rivera v. Fischer, 655 F. Supp. 2d 235, 237
(W.D.N.Y. 2009) (citing Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254
(2d Cir. 2001)). A plaintiff cannot base such a claim on a theory of “supervisory liability,”
Tangreti v. Bachmann, 983 F.3d 609, 617-18 (2d Cir. 2020); rather, “a plaintiff must
plead that each [g]overnment-official defendant, through the official’s own individual
actions, has violated the Constitution,” id. at 616 (quoting Iqbal, 556 U.S. at 676).
1. Superintendent Defendants
The superintendent defendants move to dismiss on the ground that the complaint
does not allege their personal involvement with the mask mandate. Docket Item 30-5 at
26-27; Docket Item 35-3 at 2-3; Docket Item 66 at 21; Docket Item 79-4 at 11-12. The
plaintiffs respond simply by asserting the conclusion that the complaint “properly
allege[s]” those defendants’ personal involvement by alleging that they enforced the
mask mandate. Docket Item 47 at 15-16; Docket Item 75 at 14-15.
The complaint alleges that within their respective school districts, the
superintendent defendants are responsible (1) “for enforcing and/or issuing orders and
mandates requiring students to wear masks,” (2) “for making sure that court orders are
respected and enforced,” and (3) “for mask-related disciplinary policies and
procedures.” Docket Item 1 at ¶¶ 89-101. It further alleges that each superintendent
defendant “has . . . enforced mask mandates binding on the plaintiffs[’ children],” id. at
¶ 107, including on January 25, 2022, after a state court struck down the mask
40
mandate, id. at ¶¶ 120-23; see also Docket Item 75 at 15 (arguing that the
superintendent defendants “continued to enforce the mask mandate on January 25,
2022”).
But the complaint’s conclusory allegations about the superintendent defendants’
enforcement of the mask mandate fall short of plausibly alleging those defendants’
personal involvement, as is required to maintain a section 1983 action against a
government official in his individual capacity. See, e.g., Viera v. Annucci, 2019 WL
6134903, at *2 (W.D.N.Y. Aug. 8, 2019) (collecting cases). The plaintiffs offer no
specific factual allegations about what actions the superintendent defendants took to
enforce the mask mandate on January 25 or at any other time. See generally Docket
Item 1. For example, the complaint does not allege that the superintendent defendants
made an independent decision to require masks, decided to suspend students for not
wearing masks, or stopped students from going to class without a mask. See generally
id. And the plaintiffs cannot establish section 1983 liability based on the superintendent
defendants’ roles as supervisors of their respective districts. See Tangreti, 983 F.3d at
617-18.
The plaintiffs’ individual-capacity claims against the superintendent defendants
therefore are dismissed for failing to allege that those defendants were personally
involved in the conduct at issue.
2. Erie County Defendants
The Erie County defendants argue that the plaintiffs have not alleged their
personal involvement in the mask mandate because the Erie County mask mandate
was “never implemented within schools.” Docket Item 68-4 at 5 (capitalization omitted).
41
But the plaintiffs say that after the state court struck down the state mask mandate, Erie
County Executive Poloncarz “went out of his way” to publicly remind students that the
Erie County mandate was “still in effect.” Docket Item 1 at ¶ 109; Docket Item 76 at 2.
That allegation plausibly suggests that Poloncarz was personally involved in the
enforcement of the mask mandate.
On the other hand, the plaintiffs do not explain how Burstein, the other Erie
County defendant, was personally involved in enforcement efforts. See Docket Item 76.
In fact, the only act the complaint attributes to Burstein is that she “issued a[n order]
similar” to the mandate issued by Poloncarz, see Docket Item 1 at ¶ 128; the complaint
does not explain how Burstein enforced that order or even what the order required, see
generally Docket Item 1.
The claims against Burstein in her individual capacity therefore are dismissed for
failure to allege personal involvement. But the individual-capacity claims against
Poloncarz are not dismissed on that ground.
B. Qualified Immunity
Qualified immunity “protects public officials performing discretionary functions
from personal liability in a civil suit for damages.” Vincent v. Yelich, 718 F.3d 157, 166
(2d Cir. 2013) (citations and internal quotation marks omitted). “Public officials are
entitled to qualified immunity ‘unless (1) they violated a federal statutory or constitutional
right, and (2) the unlawfulness of their conduct was “clearly established at the time.”’”
Hogue v. Scott, 2021 WL 6050864, at *4 (D. Vt. Dec. 21, 2021) (quoting District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2019)).
42
“[T]he Second Circuit has held that it is very difficult for [a qualified immunity]
defense to succeed at the pleading stage” due to the doctrine’s fact-specific nature.
Collins v. Ferguson, 804 F. Supp. 2d 134, 140-41 (W.D.N.Y. 2011) (citations omitted);
see McKenna v. Wright, 386 F.3d 432, 436-37 (2d Cir. 2004). But “[w]here the
nonexistence of a constitutional right may be discerned from the face of the complaint,
an official defendant sued in his individual capacity may be granted a dismissal on the
ground of qualified immunity pursuant to Rule 12(b)(6).” Vincent, 718 F.3d at 167. At
least one court in this circuit has applied that rule in the COVID-19 context, finding that
public officials who implement COVID-19 restrictions are entitled to qualified immunity.
See Hogue, 2021 WL 6050864, at *4-5.
The defendants have moved to dismiss the individual-capacity claims against
them on the ground that they are entitled to qualified immunity. Docket Item 30-5 at 27;
Docket Item 66 at 21-23; Docket Item 68-4 at 6; Docket Item 72-1 at 21-22; Docket Item
79-4 at 20; see Docket Item 35-3 at 3 (incorporating co-defendants’ arguments). In
response, the plaintiffs “call[] for qualified immunity to be abolished or extremely
limited.” Docket Item 47 at 4-5; Docket Item 75 at 4-5.
As discussed above, the plaintiffs have not plausibly alleged the violation of a
constitutional right—let alone that “the unlawfulness of the defendants’ conduct was
‘clearly established at the time.’” See Hogue, 2021 WL 6050864, at *4. And rather than
citing any authority to demonstrate that the defendants violated a clearly established
right, the plaintiffs say that “[t]here is simply no need to point to a specific case for th[e]
proposition” that the defendants “cannot exercise government power without explicit
constitutional authority.” Docket Item 47 at 5; Docket Item 75 at 5.
43
Because the plaintiffs have not plausibly pleaded that the defendants violated a
clearly established right, the defendants are entitled to qualified immunity. The claims
against the defendants in their individual capacities therefore are dismissed for that
reason as well.
IV. OFFICIAL-CAPACITY CLAIMS
Each set of defendants asserts an additional basis for dismissal of the official-
capacity claims brought against them.
A. Superintendent Defendants and Erie County Defendants
“[A section] 1983 suit against a municipal officer in his official capacity is treated
as an action against the municipality itself.” Coon v. Town of Springfield, 404 F.3d 683,
687 (2d Cir. 2005). A municipality cannot be held liable under section 1983 unless the
challenged action was undertaken pursuant to a municipal policy, custom, or practice.
See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). To
hold a municipality liable under section 1983, “a plaintiff is required to plead and prove
three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d
189, 195 (2d Cir. 2007) (citation omitted).
Several superintendent defendants and the Erie County defendants argue that
the claims brought against them in their official capacities should be dismissed because
the plaintiffs failed to plead a viable Monell claim. Docket Item 66 at 23-24; Docket Item
68-4 at 6-7; see Docket Item 35-3 at 2; Docket Item 79-4 at 21. The plaintiffs respond
that the superintendent defendants “may be held liable in their official capacities
because they are arguably ‘final policymakers’ with respect to choosing to enforce
44
unconstitutional state mandates,” Docket Item 75 at 16, but they do not respond to the
Erie County defendants’ argument, see Docket Item 76.
This Court Finds that the plaintiffs have not raised a viable Monell claim against
the superintendent defendants or the Erie County defendants. Even assuming that the
plaintiffs’ allegations satisfy the first prong of a Monell claim, the plaintiffs have not
plausibly alleged that they suffered a constitutional violation. They therefore have not
satisfied the second or third prongs of a Monell claim.
The plaintiffs’ official-capacity claims against the superintendent defendants and
the Erie County defendants therefore are dismissed.
B. State Defendants
The state defendants argue that the Eleventh Amendment bars the official-
capacity claims against them. Docket Item 72-1 at 21. The plaintiffs do not respond to
that argument. See Docket Item 77.
“The Eleventh Amendment precludes suits against states unless the state
expressly waives its immunity or Congress abrogates that immunity.” Li v. Lorenzo, 712
F. App’x 21, 22 (2d Cir. 2017) (summary order) (citing CSX Transp., Inc. v. N.Y. State
Off. of Real Prop. Servs., 306 F.3d 87, 94-95 (2d Cir. 2002)). A claim for money
damages under section 1983 against a state official in her official capacity “is in effect a
claim against the governmental entity itself.” Lore v. City of Syracuse, 670 F.3d 127,
164 (2d Cir. 2012) (citing Monell, 436 U.S. at 691 (1978)). Because “New York has not
waived its immunity, nor has Congress abrogated it,” Li, 712 F. App’x at 22 (citing
Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38-40 (2d Cir. 1977); Dube
v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990)), the Eleventh Amendment bars
45
official-capacity suits for money damages against New York State and its officials in
their official capacity, see Kentucky v. Graham, 473 U.S. 159, 169 (1985).
The plaintiffs’ official-capacity claims against the state defendants therefore are
dismissed.
V. PUNITIVE DAMAGES
Finally, some superintendent defendants argue that they are “immune from
punitive damages for the official capacity claims lodged against them.” Docket Item 66
at 41-42; Docket Item 79-4 at 19-20; see Docket Item 35-3 at 3. Indeed, “[i]t is settled
that punitive damages cannot be recovered from a municipal entity or municipal
employees sued in their official capacity.” Villar v. County of Erie, 2020 WL 33125, at
*10 (W.D.N.Y. Jan 2, 2020) (collecting cases). Those same defendants argue that the
plaintiffs have not alleged that their “conduct was ‘driven by evil motive or intent or by
reckless or callous indifference to the rights of others’ as required to impose punitive
damages against the individual defendants in their individual capacity.” Docket Item 66
at 42 (quoting Ehrlich v. Town of Glastonbury, 348 F.3d 48, 52 (2d Cir. 2003)); Docket
Item 79-4 at 19-20.
The plaintiffs do not substantively address these arguments. See generally
Docket Item 75; Docket Item 80; see also Docket Item 78 at 12 (arguing that the
plaintiffs have “abandoned their punitive damages claim by failing to respond to
defendants’ arguments for dismissal”). This Court therefore deems the plaintiffs’ claims
for punitive damages against those defendants to be abandoned, and they are
dismissed for that reason. See Felix v. City of New York, 344 F. Supp. 3d 644, 654
(S.D.N.Y. 2018) (“Courts may, and generally will, deem a claim abandoned when a
46
plaintiff fails to respond to a defendant’s arguments that the claim should be dismissed.”
(citations and internal quotation marks omitted)).
CONCLUSION
For the reasons stated above, the defendants’ motions to dismiss, Docket Items
30, 35, 64, 68, 72, and 79, are GRANTED. The Clerk of the Court shall close this case.
SO ORDERED.
Dated: March 1, 2023

Buffalo, New York
/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
47

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Case 1:22-cv-00116-LJV Document 82 Filed 03/01/23 Page 1 of 47

UNITED STATES DISTRICT COURT

DAVID MONGIELO, et al.,

KATHLEEN HOCHUL, et al.,

On February 8, 2022, the plaintiffs, a group of parents whose children attend

officials, Erie County officials, and superintendents of various school districts—enacted

Amendment, Fifth Amendment, Ninth Amendment, Fourteenth Amendment, Supremacy

Clause, and Guarantee Clause. Id.

Health Commissioner would “issue findings regarding the necessity of face-covering

requirements at the time such requirements are announced.” Id.

Commissioner of Health, announced such requirements. Id. at ¶¶ 118-19. More

123. That day, “many students”—including the plaintiffs’ children—“attempted to enter

that face-coverings be used in “school settings” by “teachers, staff, students, and

compulsory” in New York. Id. at ¶¶ 105-06.

2Defendant Gale R. Burstein, the Commissioner of the Erie County Department

mandates” or who “stand[] ready to impose or reimpose mask mandates” should a

mandate be “struck down by court order.” Docket Item 1 at ¶¶ 107-08.

Defendants Hochul and Bassett, as well as Betty A. Rosa, the Commissioner of

and official capacities. Id. at ¶¶ 102-04.

named as defendants: Joseph Siracuse, Superintendent of the Wayne Central School

¶ 91; Sabatino Cimato, Superintendent of the Kenmore-Tonawanda School District, id.

¶ 93; Hank Stopinski, Superintendent of the Royalton-Hartland School District, id. at

Maureen Donahue, Superintendent of the Southwestern Central School District, id. at

¶ 101 (collectively, the “superintendent defendants”). The superintendent defendants,

II. THE PLAINTIFFS

various mask requirements.” Id. at ¶ 20. 6

A. Niagara County Parents and Students

Sarah Greenawalt is the parent of two children who attend Royalton-Hartland

by the school without just cause.” Id. at ¶ 64.

masking. See generally Docket Item 1.

masking. See generally Docket Item 1.

B. Wayne County Parents and Students

allergies,” their pediatrician “wrote a doctor’s note to request desk shields”—presumably

See generally Docket Item 1.

“chronic rashes,” and TM has experienced “exacerbation of asthma, headache[s,] and

C. Cattaraugus County Parents and Students

wearing a mask,” and RM “complains about ear pain”—presumably related to masking.

issues. Id. at ¶ 48.

Kerrie McKenzie is the parent of EC, a kindergartener who attends Eastview

Heather Oldenburg is the parent of NO, a third-grader who attends Eastview

development.” Id. at ¶ 58.

Lisa Reynolds is the parent of LR, a seventh-grader who attends Portville

wearing a mask.” Id. at ¶ 68.

up from school that day. Id.

masking. See generally Docket Item 1.

D. Erie County Parents and Students

did not have masks. Id. at ¶ 70.

Christina Velez-Uebelhoer is the parent of three children in the Iroquois School

but intend[ed] to re-enroll them if it [wa]s vacated.” Id.

due to wearing a mask.” Id. at ¶ 75.

Adam Gray is the parent of four students in the Kenmore-Tonawanda School

E. Monroe County Parent and Student

issues with masking. See generally Docket Item 1.

F. Chautauqua County Parent and Student

Carol Wynham is the parent of SW, a tenth-grader who attends Southwestern

specific issues with masking. See generally Docket Item 1.

I. THE HARM TO THE PLAINTIFFS’ CHILDREN

difficulty communicating and receiving communication.” Id. at ¶ 113. “Moreover, many

effects such as anxiety.” Id.