Judge Norman Mordue
Alleging violations of 42 USC §1983 pursuant to the Eighth and Fourteenth Amendments, state inmate Magee’s pro se complaint on behalf of his minor son asserted that the boy was assaulted by a teacher while in the care of an upstate preschool Head Start program. Reviewing a magistrate judge’s report and recommendations de novo, district court denied Magee’s application to proceed in forma pauperis and granted him 30 days within which to file an amended complaint. Citing Fuentes v. Bd. of Educ. of City of New York and Crane v. Crane, the court did not adopt the magistrate judge’s suggestion that Magee’s non-custodial parent status might affect his standing to bring suit. Although “hard pressed” to find any application of the Eight Amendment’s guarantee against cruel and unusual punishment applicable, the court found clear potential application of the Fourteenth Amendment. The facts alleged by Magee could amount to use of excessive force by the defendant teacher under the Fourteenth Amendment as well as deliberate indifference by the teacher or director. Magee further made out a potential claim against the teacher for use of corporal punishment in violation of the Head Start Act under 42 USC §1983.