October 2022 - Parks & Recreation - 29

Argentina. " Allegedly, K.V. was
placed on Team Argentina, even
though she had told the coach she
was from the United States.
Viau further alleged that " none
of the white children were asked
what country they were from, and
all were placed on Team America. "
In addition, Viau alleged that John
Doe then had the children play the
" Bomb the Country " game, " pitting "
the white children against the
non-white children.
On July 11, 2019, Viau complained
about the practice to the
City of Troy Recreation Department
Director Bo and to Troy
Recreation Supervisor Mercer, as
well as another Troy official who
was not a named defendant. In
response, Mercer informed Viau
that " the game had been played for
'years' and the children loved it and
requested it. " Mercer, however, allegedly
had admitted that the game
might need a " name change. " In
response to her complaint, Viau
claimed no one addressed the alleged
segregation of the children
by race and/or ethnicity.
Viau further alleged that, on July
12, 2019, soccer coach Jane Doe informed
the children that they were
going to play a game, called " Cowboys
and Indians. " According to the
complaint, Viau also complained to
Troy officials that this game was inappropriate
because of its " us versus
them " environment. In addition,
Viau notified Troy city officials that
children had been segregated by national
origin, race and/or color on
July 10, 2019. Bo had allegedly responded
by saying, " good to know. "
Viau then " promptly " pulled K.V.
and another child of hers out of the
remainder of the summer sports
camp programs.
Plausible Claim in
Complaint
On October 18, 2021, in response
to Viau's lawsuit, the City of Troy,
Director Bo and Supervisor Mercer
(collectively the City Defendants)
filed motions for dismissal and a
pretrial summary judgment. These
pretrial motions based upon Viau's
complaint, if granted, would have
effectively dismissed Viau's
lawsuit.
Viau, however, had argued
" the City Defendants' motion for
summary judgment is premature, "
because " she should have the opportunity
to depose Mercer and
Bo before the Court considers their
request to have the claims against
them dismissed. "
As noted by the federal district
court, " a motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6) tests a
complaint's legal sufficiency " :
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. 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.
The
plausibility standard...
simply calls for enough fact to
raise a reasonable expectation that
discovery will reveal evidence of
illegal conduct. Put another way,
the complaint's allegations must
do more than create speculation or
suspicion of a legally cognizable
cause of action; they must show
entitlement to relief.
Further, pursuant to Federal
Rule of Civil Procedure 56, the
federal district court would grant
summary judgment if " the movant
[i.e., each city defendant]
shows that there is no genuine
dispute as to any material fact and
the movant is entitled to judgment
as a matter of law. "
The federal district court
would, therefore, reject the City
Defendants' motions to dismiss
and summary judgment if Viau
had alleged sufficient facts in her
complaint to set forth a " plausible "
claim. In so doing, the court
acknowledged it was required to
" accept the factual allegations in
the complaint as true. "
As cited by the court, to state a
Section 1983 claim, " a plaintiff
must allege the violation of a
right secured by the federal
Constitution or laws and must
show that the deprivation was
committed by a person acting
under color of state law. "
Section 1983 Municipal
Liability
In her lawsuit, Viau brought a Section
1983 claim against the City of
Troy. As cited by the court, to state
a Section 1983 claim, " a plaintiff
must allege the violation of a right
secured by the federal Constitution
or laws and must show that the
deprivation was committed by a
person acting under color of state
law. " In so doing, the court noted
" the first step in an action under
Section 1983 is to identify the specific
constitutional right allegedly
violated, " because " Section 1983
is a method for vindicating federal
rights, not a source of substantive
rights itself. "
In her complaint, Viau
had
alleged " the City Defendants
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October 2022 - Parks & Recreation

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