UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
KHADIJAH ABUBAKARI and ANAS ABUBAKARI, No. 3:19-cv-00510
Plaintiffs, v. ELIZABETH SCHENKER in her individual capacity,
Defendant.
RULING ON MOTION TO DISMISS
Plaintiffs Khadijah Abubakari and Anas Abubakari (“Plaintiffs” or the “Abubakaris”)
bring this action under 42 U.S.C. § 1983 on behalf of themselves and their minor child, U.A. ,
against Defendant Elizabeth Schenker (“Schenker”), alleging First and Fourteenth amendment
violations and intentional infliction of emotional distress based on Schenker’s alleged knowing
and malicious filing of a false complaint against the Abubakaris with the Connecticut
Department of Children and Families. ECF No. 37. Schenker filed a partial motion to dismiss,
seeking to dismiss Count One (violation of the First and Fourteenth Amendments) for failure to
state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).
ECF No. 38. For the reasons set forth below, Schenker’s motion to dismiss is DENIED.
I. BACKGROUND
The following facts are drawn from the Abubakaris’ amended complaint and are accepted
as true for the purpose of this ruling.
The Abubakaris are adult residents of Hamden, Connecticut. ECF No. 37 ¶ 1. They are
the parents of U.A., a minor child. Id. Elizabeth Schenker was, at all times mentioned in the
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Complaint, a social worker employed by the Hamden Board of Education and was acting in her
capacity as such. Id. ¶ 2.1
During the 2016-2017 school year, U.A. was enrolled in Hamden Elementary School (the
“School”). Id. ¶ 5. At a meeting of the School’s Pupil Planning Team (“PPT”), U.A. was
identified as a student requiring special education under federal law, that is, the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400, et seq., and an individual education plan (“IEP”)
was put in place for U.A. ECF No. 37 ¶ 5. The PPT also determined that U.A. would be
provided special education services, including a “one-to-one paraprofessional to assist [U.A.]
with his learning disabilities so that he would be able to transition into the Hamden Middle
School and continue to succeed there.” Id.
During the 2017-2018 school year, U.A. was enrolled in the Hamden Middle School. Id.
¶ 6. During a PPT meeting in June 2017, School officials changed U.A.’s IEP to, among other
things, eliminate the one-to-one paraprofessional. Id. ¶ 7. As a result of the changes, U.A.’s
educational progress “regressed”, but School officials continued to “socially advance him”
through his grade. Id. ¶ 8. As a result of U.A.’s regression, the Abubakaris requested
reinstatement of the one-to-one paraprofessional and other special education services and
accommodations “to reverse the regression and enable U.A. to successfully perform in the
middle school.” Id. ¶ 9. School officials denied the Abubakaris’ request, and, at a PPT meeting
on February 13, 2018, Khadijah Abubakari “expressly announced that she would pull U.A. out of
his enrollment in the Hamden Public Schools and continue to keep him out until the school
district provided him with the special education services and accommodations she believed
necessary to allow him to progress successfully.” Id. ¶¶ 10-11. Khadijah Abubakari further
1 The complaint makes clear that Schenker is sued only in her individual capacity. ECF No. 37 ¶ 2.
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“announced explicitly and on the record that beginning immediately she would be home -
schooling U.A., as is specifically provided and permitted by Section 10 -184 of the Connecticut
General Statutes.” Id. ¶ 12.
On March 22, 2018, Schenker, with “actual knowledge” of Khadijah Abubakari’s
February 13, 2018 announcements, “knowingly and maliciously filed a false complaint with the
Connecticut Department of Children and Families [(“DCF”)] claiming that the [Abubakaris]
were educationally neglecting U.A.” because (1) U.A. “has not been in school since February 13,
2018” and (2) the Abubakaris “ha[ve] not engaged in communication with the school” and
“ha[ve] been difficult to work with at IEP [meetings]”, the last of which had occurred on
February 13, 2018. Id. ¶¶ 13-14. In filing the complaint with DCF, Schenker “concealed the
fact that she had actual knowledge that the [Abubakaris] were home-schooling their child in
compliance with the provisions of Connecticut law.” Id. Schenker also “knew, and intended,”
that as a result of her malicious actions, DCF “would initiate child neglect proceedings against
the [Abubakaris], would require them to appear in court, and would attempt to remove U.A. from
their custody and place him in foster care.” Id. ¶ 15. Schenker “knew, and intended, that both
[the Abubakaris] and U.A. would suffer severe emotional distress as a result of her actions and
that the [Abubakaris] would be forced to incur substantial expenses to obtain counsel and attempt
to save themselves and their child from her vicious attack.” Id.
In 2018, DCF did “launch an invasive investigation of the [Abubakaris] and their child
and did file a Petition for neglect against them in the Connecticut Superior Court.” Id. ¶ 16. As
a result, the Abubakaris “were subjected to a child neglect prosecution in the Superior
Court, were required to hire an attorney at substantial expense, were required to appear in court
to defend themselves, and suffered great and prolonged fear, anguish, sleeplessness, loss of
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appetite, and other aspects of severe emotional distress.” Id. ¶ 17. On October 17, 2018, DCF
withdrew their Petition for Neglect because the Abubakaris’ attorney “was able to prove the
malicious falsity of [Schenker’s] accusations . . . .” Id. ¶ 18.
The Abubakaris assert two claims for relief. First, because of Schenker’s allegedly false
complaint filed with DCF, Count One alleges that “the [Abubakaris] were subjected to invasion
of their relationship with their minor child [U.A.] and were deprived of substantive due process
of law, all in violation of the First and Fourteenth Amendments to the United States Constitution
as enforced through Sections 1983 and 1988 of Title 42 of the United States Code.” ECF No. 37
¶ 19. Count Two alleges intentional infliction of emotional distress by Schenker based on the
same alleged conduct. Id. at 5 ¶ 2.
II. LEGAL STANDARD
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must determine
whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its
face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The court accepts as true all of the complaint’s factual allegations when evaluating a
motion to dismiss, id., and “must draw all reasonable inferences in favor of the non-moving
party,” Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d
Cir. 2008). However, “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to survive a motion to dismiss. Mastafa v. Chevron
Corp., 770 F.3d 170, 177 (2d Cir. 2014).
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III. DISCUSSION
Schenker asks the Court to dismiss Count One of the operative complaint because the
Abubakaris: (1) have not complied with this Court’s order (ECF No. 36) requiring them to file an
amended complaint that asserts distinct claims under the First and Fourteenth Amendments, ECF
No. 38-1 at 5-7; and (2) have, in any case, failed to state a claim under either the First or
Fourteenth Amendment because they have “failed to plead sufficient facts from which it can be
determined the federal or constitutional right alleged to have been violated,” id. at 8. In
response, the Abubakaris argue that the motion to dismiss should be denied because (1) they
complied with the Court’s order as to pleading distinct legal theories in the amended complaint,
and (2) the “right of intimate familial association . . . is one which most courts believe lies in the
interface between the First Amendment’s right of association and the Fourteenth Amendment’s
right to substantive due process of law . . . .” ECF No. 41 at 1, 12. For the reasons discussed
below, I find that (1) the Abubakaris complied adequately with the Court’s order as to pleading,
and (2) they have pled sufficient facts to state a section 1983 claim alleging violations of the
First and Fourteenth Amendments. Schenker’s motion to dismiss therefore must be denied.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) “some person has
deprived him of a federal right” and (2) “the person who has deprived him of that right acted
under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980). As noted
above, Schenker contends that the Abubakaris have failed to state a claim for relief under either
the First Amendment or the Fourteenth Amendment, and as such, the complaint fails to meet the
first prong of a section 1983 claim. ECF No. 38-1 at 7-8. The Abubakaris allege, and Schenker
does not contest, that Schenker was acting under color of state law at all times mentioned in the
complaint. As a result, the only issue before me is whether the amended complaint alleges the
deprivation of a federal right.
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A. The Abubakaris Complied with the Order to File an Amended Complaint.
As to the Abubakaris’ compliance with the order directing them to file an amended
complaint, Schenker argues that “[b]y combining two separate causes of action into one count,
the plaintiffs have failed to provide a clear statement of the law entitling them to relief and the
factual support needed to support such a claim and have ignored this court’s clear directive.”
ECF No. 38-1 at 7. But while my order noted that some of the claims in the original complaint
did “not clearly set forth a distinct legal theory, as separate counts of a well-drafted complaint
should,” and that “it would be consistent with Rule 1 and the interests of justice to give counsel
an opportunity to replead these claims, . . . with an eye to making the claims distinct and
coherent,” ECF No. 36, it did not bar counsel from pleading two legal theories in the same count.
Nor could it have, as Rule 8, which governs pleading in federal court, includes no such bar. To
the contrary, it adopts a flexible view of proper pleading, permitting a party to “set out 2 or more
statements of a claim or defense alternatively or hypothetically, either in a single count or
defense or in separate ones,” noting that “[i]f a party makes alternative statements, the pleading
is sufficient if any one of them is sufficient,” and providing that “[p]leadings must be construed
so as to do justice.” Fed. R. Civ. P. 8(d)(2), (e). In any event, as shown below, uncertainty in the
law about the source of the right at issue in this case makes it reasonable to plead a violation of
that right under both the First and Fourteenth Amendments.
B. Count One States a First Amendment Retaliation Claim.
Schenker argues that, “[t]o the extent the [Abubakaris] are reasserting that [Schenker’s]
actions in this matter impacted on their right to ‘free speech’ or redress of grievances, or
constituted an act of retaliation in response to the exercise of these rights, [they] have failed to
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state sufficient facts to support any such claims.” ECF No. 38-1 at 9. Schenker also incorporates
the arguments made as to a First Amendment claim from her prior memorandum . ECF No. 27-1.
Courts in the Second Circuit have recognized a right of “intimate association” among
family members, but as the Court of Appeals observed in Adler v. Pataki, “the source of the
intimate association right has not been authoritatively determined,” and may be grounded in
either the First or Fourteenth Amendments depending on the specific context. 185 F.3d 35, 42
(2d Cir. 1999) (citing U.S. Supreme Court cases that ground the right of intimate association in
the due process clause of the Fourteenth Amendment (as a either a liberty or privacy right), the
First Amendment, or that discuss such a right without grounding it in any specific amendment).
The Adler Court went on to observe that, in the context of analyzing claims alleging burdens on
marital relationships (one of a number of intimate associations protected by either the First or
Fourteenth Amendment), the constitutional grounding of a claim tended to turn on whether a
broad regulation or a specific adverse action was being challenged. Id. at 43. While
“[c]hallenges to broad regulatory measures . . . tend to be considered claims of unlawful
classifications and are tested against the Equal Protection Clause, once a court has asserted that
the right to marry is a fundamental right protected by the Due Process Clause[,]” id., “claims that
some adverse state action burdens an individual’s marital relationship have been assessed under
a First Amendment doctrine of intimate marital association[,]” id.
Courts in the Second Circuit have found that the First Amendment right to intimate
association is infringed “[w]here a plaintiff is allegedly retaliated against for the First
Amendment activities of a family member . . . .” Agostino v. Simpson, 08-CV-5760 (CS), 2008
WL 4906140, at *9 (S.D.N.Y. Nov. 17, 2008); see also Adler, 185 F.3d at 44 (“Though the
matter is not free from doubt, we think a spouse’s claim that adverse action was taken solely
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against that spouse in retaliation for conduct of the other spouse should be analyzed as a claimed
violation of a First Amendment right of intimate association.”); Sutton v. Village of Valley
Stream, 96 F. Supp. 2d 189, 192-93 (E.D.N.Y. 2000) (holding that plaintiff had stated a claim for
violation of his First Amendment right to intimate association where he alleged that his local
government employer harassed him in retaliation for his father’s political activities because such
action was alleged to have “unconstitutionally intruded upon Plaintiff’s relationship with his
father”). “To state a First Amendment retaliation claim, a plaintiff must establish that: (1) his
speech or conduct was protected by the First Amendment; (2) the defendant took an adverse
action against him; and (3) there was a causal connection between this adverse action and the
protected speech [or conduct].” Puglisi v. Town of Hempstead, Dep’t of Sanitation, Sanitary
Dist. No. 2, 545 Fed. Appx. 23, 26 (2d Cir. 2013) (quoting Cox v. Warwick Valley Cent. Sch.
Dist., 654 F.3d 267, 272 (2d Cir. 2011). For the purpose of a First Amendment retaliation claim,
an “adverse action” is “conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights.” Cox, 654 F.3d at 273 (internal
quotations mark omitted).
The intimate association cases discussed above are factually distinguishable from the
case at hand in that the allegations here suggest that Schenker retaliated against the Abubakaris
for their own activity, rather than the activity of their family member (i.e., U.A.). Specifically,
the operative complaint alleges that the Abubakaris took U.A. out of school to be homeschooled
and explicitly stated their intent to do so such that Schenker had actual knowledge of U.A.’s
removal from school for that purpose. ECF No. 37. ¶¶ 11-14. About five weeks later, Schenker
allegedly lied to the DCF, claiming that the Abubakaris were “educationally neglecting” U.A.
and had “not engaged in communication with the school,” all the while “conceal[ing] the fact
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that [Schenker] had actual knowledge that the plaintiffs were home-schooling their child in
compliance with the provisions of Connecticut law.” Id. These facts do not suggest that the
Abubakaris were retaliated against due to the activities of a family member.
Nonetheless, these facts do suggest a more straightforward theory of free speech
retaliation: The Abubakaris requested reinstatement of the one-to-one paraprofessional, their
request was denied, and in the February 13, 2018 PPT meeting, Ms. Abuabakari announced she
would pull U.A. out of public school and begin homeschooling him “until the school district
provided [U.A.] with the special education services and accommodations she believed necessary
to allow him to progress successfully”; only five weeks later Schenker lied about th e Abubakaris
to the DCF, knowing this could lead to DCF’s taking action aimed at separating them from their
child. ECF No. 37 ¶¶ 11-15. I construe these facts to allege—and Schenker does not contest—
that Ms. Abubakari’s speech at the February 13, 2018 PPT meeting is protected by the First
Amendment, satisfying the first prong of a First Amendment retaliation claim. The second prong
is satisfied because the Abubakaris’ allegations suggest that the adverse action—Schenker’s
knowingly filing a false complaint with DCF, thus causing DCF to initiate child neglect
proceedings against the Abubakaris—was done by Schenker with the intent to punish their
exercise of the right to free speech. In addition, Schenker’s alleged conduct is precisely the kind
that “would deter a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights.” Cox, 654 F.3d at 273 (internal quotations mark omitted); see also Manon
v. Pons, 131 F. Supp. 3d 219, 232 (S.D.N.Y. 2015) (noting that “adverse actions” for the purpose
of a First Amendment retaliation claim in the employment context have included “harsh
measures, such as discharge, refusal to hire, refusal to promote, reduction in pay, and reprimand,
as well as some lesser sanctions, such as failure to process a teacher’s insurance form, demotion,
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reassignment to a place that aggravated physical disabilities, and express accusations of lying.
Although it would trivialize the First Amendment to hold that harassment for exercising the right
of free speech was always actionable no matter how unlikely to deter a person of ordinary
firmness from that exercise, context matters, as some actions may take on more or less
significance depending on the context.” (internal quotation marks and citations omitted)).
Lastly, the third prong is satisfied because, while the complaint does not use the word “retaliate”,
it does allege a clear causal connection—when all reasonable inferences are drawn in the
Plaintiffs’ favor—between Khadijah Abubakari’s announcement at the February 13, 2018
meeting that the Abubakaris would be homeschooling U.A. until adequate accommodations were
provided at the School and her subsequent conduct of homeschooling him, on the one hand, an d
Schenker’s decision five weeks later to file the allegedly false DCF claim on the other. ECF No.
37 ¶¶ 11-15; see Nagle v. Marron, 663 F.3d 100, 110 (2d Cir. 2011) (“A ‘plaintiff can . . .
establish a causal connection to support a . . . retaliation claim by ‘showing that the protected
activity was closely followed in time by the adverse [] action.’”). Because these allegations are
adequate to plead a free speech retaliation claim under the First Amendment, I need not decide
whether to extend Second Circuit First Amendment “intimate association” case law to the facts
alleged in the complaint. Count One adequately pleads a claim under the First Amendment.
C. Count One States a Fourteenth Amendment Substantive Due Process Claim.
Schenker also argues that the complaint fails to state a claim under the Fourteenth
Amendment. ECF No. 38-1 at 7-8. She supports that argument by stating that “[a]s ple[d] . . .
there is no claim of a violation of the parents’ alleged liberty interest in their son’s education, as
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this interest is held jointly by both parent and the State, both of whom continued to play a legal
role in the student’s education.” Id. at 11.
As Schenker acknowledges, parents have a constitutionally protected right in the care,
custody, and management of their children. See Troxel v. Granville, 530 U.S. 57, 66 (2000); see
also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) (recognizing the right of the
family “to remain together without the coercive interference of the awesome power of the
state”). The Second Circuit has cautioned against a “formalistic vision of how severe the
impairment to the right of intimate association must be” in light of the Supreme Court’s
“statement that constitutional protections for associational interests are at their apogee when
close family relationships are at issue.” Patel v. Searles, 305 F.3d 130, 137 (2d Cir. 2002)
(discussing Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984)). Moreover,
“[c]hoices about marriage, family life, and the upbringing of children are among associational
rights [the Supreme] Court has ranked as of basic importance in our society, rights sheltered by
the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (internal quotation marks and citation omitted).
The Abubakaris allege that Schenker deprived them of substantive due process and
invaded their relationship with their child by filing a false child neglect complaint against them.
ECF No. 37 ¶ 19. The Abubakaris’ complaint alleges that Schenker “knew, and intended, that
the result of her . . . actions would be that [DCF] would . . . attempt to remove U.A. from [the
Abubakaris’] custody and place him in foster care.” ECF No. 37 ¶ 15. Moreover, the complaint
alleges that the Abubakaris suffered “severe emotional distress” and “great and prolonged fear,
anguish, sleeplessness, loss of appetite, and other aspects of severe emotional distress.” Id. ¶¶
15, 17. The Abubakaris also allege that Schenker’s conduct forced them to incur “substantial
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expenses” to defend themselves and their child against the false DCF complaint that could result
in the removal of U.A. from their home and his placement in foster care. Id. Lastly, the
complaint alleges that DCF “launch[ed] an invasive investigation” of the Abubakaris and their
child that, when taken together with the previous allegations, resulted in an unconstitutional
“invasion of their relationship with their minor child”. Id. ¶¶ 16, 19. At the pleadings stage,
these allegations are sufficient to state a claim of deprivation of substantive due process for
violating the Abubakaris’ right of intimate association with their son. See Patel, 305 F.3d at 136
(noting that Supreme Court had “cited a number of substantive due process cases” in describing
the “freedom of intimate association” as “a fundamental element of personal liberty.” (citing
Roberts, 468 U.S. at 617-18)). Whether the State of Connecticut has rights that must be balanced
against those of the Abubakaris, as Schenker argues, is immaterial at this stage of the case. Even
if Schenker is correct, that kind of balancing consideration is not appropriately assessed on a
Rule 12(b)(6) motion to dismiss because it requires making determinations as to material facts
that are disputed by the parties. Thus, the Abubakaris have alleged sufficient facts to state a
section 1983 claim based on a violation of the Fourteenth Amendment’s right of substantive due
process and Schenker’s motion to dismiss must be denied on this basis.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss, ECF No. 38, is hereby
DENIED.
IT IS SO ORDERED.
/s/ Michael P. Shea, U.S.D.J.
Dated: Hartford, Connecticut April 26, 2021
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