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O'Connor v. Bassoff

United States District Court, D. Colorado

December 3, 2015

ANDREW J. O’CONNOR, Plaintiff,
v.
TOBEY BASSOFF, JOLENE RADOSTIS, RICK KELLOGG, ROBBYN FERNANDEZ, BRUCE MESSINGER, RYAN ELEMENTARY SCHOOL, and BOULDER VALLEY SCHOOL DISTRICT NO. RE2, individually and severally, Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

LEWIS T. BABCOCK, Senior Judge United States District Court

Plaintiff, Andrew J. O’Connor, has filed pro se a Fifth Amended Complaint (ECF No. 28). The Court must construe the Fifth Amended Complaint liberally because although Mr. O’Connor is trained as an attorney, he is not an active member of the bar, and is proceeding pro se in this action. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court should not be an advocate for a pro se litigant. See id.

Mr. O’Connor has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 23). Therefore, the Court must dismiss the action if Mr. O’Connor’s claims are frivolous or malicious or seek damages from defendants who are immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i) & (iii). A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). For the reasons stated below, the Court will dismiss the action in part as legally frivolous and the remaining claim will be drawn to a presiding judge and, if applicable, a magistrate judge.

I. Background

Plaintiff alleges that his daughter, who is now a second grade student at Ryan Elementary, has suffered numerous injuries at school. In May of 2014, a classmate pushed his daughter down on the school playground as she was running to get into line. His daughter suffered scrapes to her knees and hands. On September 3, 2015, his daughter was called “stupid” by another student and she was again pushed to the ground. According to Plaintiff, the teacher, Defendant Radostis, never witnessed these incidents. On September 8, 2015, Plaintiff attended a PTA meeting at the school and asked Defendant Principal Bassoff why there wasn’t better supervision on the playgrounds and classrooms and what was the school’s policy on bullying. On or about September 15, 2015, his daughter apparently collided with another girl in the classroom and suffered a serious bruise to her forehead and a serious headache. The latest incident occurred on September 17, 2015. On that day, Plaintiff’s daughter was tripped by a boy in her class and she fell and hit her chin on a desk and knocked a tooth out. She also suffered from a painful headache, deep scrapes and bruising to her chin.

Later that day, Plaintiff’s wife emailed Defendant Radostis regarding the parents’ concern about the incident and the lack of supervision. The teacher never responded to the email. So, the following morning, on September 18, 2015, Plaintiff and his wife went to the school to drop off their daughter and schedule a time to meet with the teacher to discuss the incident and their concerns about their daughter’s safety. According to Plaintiff, he and his wife spoke to Defendant Radostis in a respectful manner but the teacher became extremely defensive.

Later that day, Plaintiff received a telephone call from the Elementary School requesting that he meet with Defendant Principal Bassoff to discuss “partnering” with the school. The meeting was scheduled for September 22, 2015. Plaintiff’s wife asked who would be at the meeting and she was told Defendants Bassoff and Radostis would be the only people there along with the Plaintiff and his wife.

On September 22, 2015, Plaintiff did not attend the scheduled meeting. At one point he claims he failed to attend because he was ill. (ECF No. 28 at 10). At another point, he alleges he “decided not to attend the meeting because of the unnecessary, acrimonious and antagonistic presence of the [BVSD] security guard.” (ECF No. 28 at 7). Plaintiff’s wife attended the meeting, but Defendant Radostis was not present. Instead, it was the principal, Defendant Bassoff, as well as the BVSD Security Services Manager, Defendant Kellogg (although, at one point, Plaintiff states the Security Services Manager in attendance was Chris Wilderman, see ECF No. 28 at 7). Plaintiff alleges that Defendant Bassoff engaged in unethical and unprofessional conduct by having a security guard at the meeting.

At the meeting, Plaintiff’s wife received a letter addressed to Plaintiff and signed by Defendant Bassoff, as well as a document titled “Positive Parent Partnership, ” and Defendant Kellogg’s business card. (See ECF No. 20 at 20-22).

The letter stated the following:

I am concerned about the following report made to me:
• Staff report that on Friday, September 18, 2015, you shared your concerns and opinions about [your daughter’s] accident on school on Thursday, September 17, 2015, in a way that was hostile and confrontational and you did so in front of other students. You made [your daughter’s] teacher and students feel uncomfortable, threatened and afraid.
As the Principal of Ryan [Elementary School], I have the responsibility to respond to parental behaviors that are causing disruption in our school’s ability to function and educate students. Therefore, I am hereby requesting that you abide by the following procedures while on our campus:
1. I will be your point of contact for all school and class business. When other staff members need to be involved, I will make the appropriate contact and/or deliver the necessary message. If a meeting is necessary, I will make the ...

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