ROSS et al v. BOARD OF EDUCATION et al
Filing
60
OPINION. Signed by Judge Noel L. Hillman on 6/8/2015. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GEORGE ANDREW ROSS, et al.,
Civil No. 11-6490 (NLH/KMW)
Plaintiffs,
OPINION
v.
BOARD OF EDUCATION GREATER
EGG HARBOR REGIONAL HIGH
SCHOOL DISTRICT, et al.,
Defendants.
APPEARANCES
JERRY C. GOLDHAGEN
CENTRAL PARK EAST
222 NEW ROAD, SUITE 302
LINWOOD, NJ 08221
On behalf of plaintiffs
TIMOTHY R. BIEG
MADDEN & MADDEN
108 KINGS HIGHWAY EAST, SUITE 200
P.O. BOX 210
HADDONFIELD, NJ 08033-0389
On behalf of defendants Greater Egg Harbor Regional High
School District, Michael Wilbraham, and Ernest Rockelman
JOHN J. BANNAN
REYNOLDS & HORN, P.C.
750 ROUTE 73 SOUTH
SUITE 202A
MARLTON, NJ 08053
On behalf of defendants Galloway Township Police Department
and Kevin Jorgensen
HILLMAN, District Judge
Presently before the Court is the motion of defendants
Greater Egg Harbor Regional High School District, Michael
Wilbraham, and Ernest Rockelman, and the motion of defendants
Galloway Township Police Department and Kevin Jorgensen for
summary judgment in their favor on plaintiffs’ claims arising
out of an altercation between high school students.
For the
reasons expressed below, defendants’ motions will be granted.
BACKGROUND
On March 30, 2009, plaintiff, George Andrew Ross II, was a
sophomore at Absegami High School in Galloway Township, New
Jersey.
At around 7:00 am that morning, defendant Donald
Pilgrim, a senior at Absegami, confronted plaintiff in the high
school’s 200 hallway stairwell regarding plaintiff’s thengirlfriend, Briana Forbey. 1
1
According to plaintiff, Donald spoke
Briana Forbey is named as a defendant in the action, but it is
unclear whether she was ever served with the complaint when it
was filed in state court in October 2011, or when it was removed
to this Court in November 2011, as no one has entered an
appearance on her behalf. The Court will dismiss plaintiffs’
claims against Ms. Forbey for not only lack of prosecution, but
also because no evidence in the record supports any claim
against her. See F.R.C.P. 4(m) (“If service of the summons and
complaint is not made upon a defendant within 120 days after the
filing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the
action without prejudice as to that defendant or direct that
service be effected within a specified time; provided that if
the plaintiff shows good cause for the failure, the court shall
extend the time for service for an appropriate period.”); Bryson
v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980)
(holding that a “district court may on its own initiative enter
an order dismissing the action provided that the complaint
2
“fighting words” to plaintiff because he wanted to “have”
Briana.
Plaintiff indicated that he did not want to fight, but
plaintiff and Donald began to argue, and they eventually started
to tussle.
Defendant Earnest Rockelman, an Absegami teacher,
heard the altercation from the upstairs hallway and came running
down to break up the fight.
Rockelman yelled for another
teacher in the hallway to alert the office, which she did by
using her classroom’s intercom system.
Rockelman managed to
restrain Donald in a bear-hug posture until defendant Michael
Wilbraham, one of the school’s vice-principals, came from the
office.
Before Wilbraham arrived, plaintiff, uninjured at that
time, left the 200 hallway and proceeded to the 100 hallway, 2
where he encountered Donald’s sisters, defendants Diamond and
Dynasty Pilgrim.
The girls began to taunt plaintiff, and they
followed plaintiff through the hallway as he walked back toward
the 200 hallway where he had his first class.
The girls started
affords a sufficient basis for the court’s action”).
2 Rockelman states that he told plaintiff to remain on the scene.
Plaintiff states that Rockelman did not tell plaintiff to stay.
Plaintiff’s friend, Gilbert Langford, who arrived while
plaintiff was walking away, stated that he felt it was odd that
plaintiff was not told to stay there, because “[u]sually, . . .
if a fight occurs at Absegami they take both students to the
principal’s office, do the work, and just suspend them straight
there.” (Langford Dep. at 18.)
3
to throw punches at plaintiff, and then Donald, who had broken
free from Vice-Principal Wilbraham’s grip, came on the scene and
blindsided plaintiff.
Donald hit plaintiff in the face and the
three Pilgrim siblings kicked him while he was lying on the
ground.
Plaintiff’s friend, Gilbert Langford, who had been
walking with plaintiff down the hall from the first incident,
pulled Donald off plaintiff, and school staff members helped
break up the fight. 3
Plaintiff walked away and was escorted by a
janitor to the school nurse.
Plaintiff’s father picked up
plaintiff from school and took him to the hospital.
Plaintiff
suffered from a fractured eye socket, bumps and bruises to his
face and body, and he received six stitches.
When the first altercation occurred, school resource police
officer, defendant Kevin Jorgensen, a patrolman for the Galloway
Police Department, received a radio call that there was a fight
in the 200 hallway near the B corridor.
As soon as he arrived
there, at the same time as Wilbraham, he witnessed Rockelman
standing chest-to-chest with Donald, and then received a call
about another altercation in the 100 hallway, which was
presumably plaintiff’s interaction with the Pilgrim sisters.
3
It appears that Briana and another student, Derek, were also
involved in the altercation, although the nature of their
involvement is unclear.
4
Jorgensen immediately turned to go to the 100 hallway.
When he
arrived to the scene of the second incident, it had already been
broken up.
Just prior to Jorgensen coming to that part of the
100 hallway, Donald had broken free from Wilbraham, who had been
escorting Donald down the 200 hallway to the office, and hit
plaintiff who was returning to the 200 hallway along with the
Pilgrim sisters.
Wilbraham, who yelled after Donald and started
to run after him, came to the scene, which was breaking up, and
took Donald to his office.
As a result of the altercations, the Pilgrim siblings were
charged by Officer Jorgensen and the school, through Wilbraham,
with aggravated assault and harassment.
They pleaded guilty and
were ordered to pay plaintiff restitution.
The school, through
Wilbraham, charged plaintiff with simple assault and disorderly
conduct.
The school chose not to pursue those charges, and they
were dismissed. 4
Plaintiff, along with everyone else involved in
the altercation, including the Pilgrim siblings, Gilbert,
4
Following the filing of the charges against plaintiff, the
Galloway Township Police Department mailed plaintiff’s parents a
letter informing them that the charges could be dealt with as a
“station house adjustment,” which is a volunteer program that
would avoid the filing of a formal complaint with the superior
court. Plaintiff’s parents did not respond. Plaintiffs claim
that they had to hire an attorney to appear in court, at which
time the charges were dismissed.
5
Briana, and another student, Derek, were suspended from school.
Plaintiff served 9 days of out-of-school suspension, and during
that time he was not permitted to participate in any
extracurricular activities, including not attending the prom. 5
Plaintiff, through his parents, filed suit against Greater
Egg Harbor Regional High School District, Wilbraham, Rockelman,
the Galloway Township Police Department, and Jorgensen, as well
as the three Pilgrim siblings and Briana Forbey, who have not
appeared in the matter.
Plaintiffs have asserted numerous
claims against the defendants alleging, in a nutshell, that
defendants failed to properly protect him from the altercations,
and defendants imposed unjustified charges and discipline on
him.
The appearing defendants have all moved for summary
judgment in their favor.
Plaintiffs have opposed their motions.
DISCUSSION
A.
Jurisdiction
Defendants removed this action from New Jersey state court
5
Plaintiff was a sophomore at the time of this incident, but his
complaint alleges that he was not permitted to attend the senior
prom. His deposition testimony does not clear up the question
of what prom he missed, and it is unclear whether missing the
prom was a result of breaking up with his girlfriend or due to
the school’s “social suspension.” Nevertheless, the Court
accepts plaintiff’s claim that missing the prom as a part of his
9-day suspension was unjustified punishment.
6
to this Court pursuant to 28 U.S.C. § 1441.
This Court has
jurisdiction over plaintiffs’ federal claims under 28 U.S.C. §
1331, and supplemental jurisdiction over plaintiffs’ state law
claims under 28 U.S.C. § 1367.
B.
Summary Judgment Standard
Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
7
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the
moving party has the burden of demonstrating the absence of a
genuine issue of material fact.
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett, 477
Once the moving party has met this
burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue
for trial.
Id.
Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.
Anderson, 477 U.S. at 256-57.
A party
opposing summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
C.
Analysis
Plaintiffs allege an array of claims against defendants
that sound in tort, contract, and quasi-contract theories of
liability, along with general constitutional violation claims.
The two theories of liability to support all those claims appear
to be (1) that the defendants failed to properly protect
plaintiff from being injured by the Pilgrim siblings, and (2)
that the defendants imposed unwarranted punishment and criminal
8
charges on plaintiff for his involvement in the altercations.
The evidence in the record does not support either theory of
liability.
With regard to a school’s duty to protect students, a
school “cannot be expected to shelter students from all
instances of peer harassment.”
L.W. ex rel. L.G. v. Toms River
Regional Schools Bd. of Educ., 915 A.2d 535, 550 (N.J. 2007).
“Nevertheless, reasonable measures are required to protect our
youth, a duty that schools are more than capable of performing.”
Id.
Educators are required to protect the “children in their
charge from foreseeable dangers, whether those dangers arise
from the careless acts or intentional transgressions of others.”
Jerkins ex rel. Jerkins v. Anderson, 922 A.2d 1279, 1284 (N.J.
2007) (citations and quotations omitted).
Foreseeability of
injury, as it affects the existence of a duty, refers to “the
knowledge of the risk of injury to be apprehended.”
Id.
(citation omitted).
The ability to foresee harm, however, “does not in itself
establish the existence of a duty.”
Id.
Whether a duty exists
is “one of fairness and policy that implicates many factors,”
including “the relationship of the parties, the nature of the
attendant risk, the opportunity and ability to exercise care,
9
and the public interest in the proposed solution.”
(citations omitted).
Id.
A “court must examine all of the attendant
circumstances in light of those and other relevant
considerations and must engage in a fact-based and principled
analysis.”
Id. (citations omitted).
The determination of
foreseeability and whether a duty should be imposed is a matter
of law decided by the court.
Carvalho v. Toll Bros. and
Developers, 675 A.2d 209, 212 (N.J. 1996).
The altercation between plaintiff and Donald was
foreseeable in the sense, as Vice-Principal Wilbraham put it,
that getting physical over a girlfriend situation “would
describe half of any high school boy that gets into a fight.”
(Wilbraham Dep. at 36:14.)
The specific incidents that happened
on March 30, 2009, however, were not foreseeable to any of the
defendants.
Plaintiff testified that he had no prior history with
Donald or the Pilgrim siblings, except that Dynasty and Briana
had some sort of incident, and Dynasty and plaintiff would
sometimes “bust each other’s balls.”
Donald, a senior, had
amassed a several-page disciplinary record since his freshman
year, but most of his transgressions were for being late or
absent, and being disrespectful to teachers by not following
10
their directions.
During his senior year, up to the March 30,
2009 incident, the only discipline Donald received for any
conduct physical in nature was a two-day in-school suspension in
November 2008 for getting into a grabbing and pushing match with
a female student.
With Donald not having any known propensity
for physical violence against another student, and plaintiff not
having any prior personal interaction with Donald, it was not
foreseeable to the school staff or the school resource police
officer that plaintiff and Donald would engage in any sort of
physical altercation.
Without a foreseeable risk, it cannot be
found that defendants breached any duty to plaintiff to
specifically protect him from Donald. 6
To the extent that plaintiff argues that the defendants
failed in their duty to protect him after the first incident
because it was foreseeable that Donald would go after plaintiff
again, the circumstances of the events preclude the imposition
of a duty on defendants to prevent the second encounter, or the
6
At some point prior to the March 30, 2009 incident, plaintiff’s
father spoke to Wilbraham and the Galloway Police Department
about how a number of students were getting into fights after
school. Plaintiff was not one of them, although he observed the
incidents, and there is no indication that Donald was involved.
That defendants were aware that high students were engaging in
after school fisticuffs does not cause the altercation between
plaintiff and Donald as it happened that day to be foreseeable
to the defendants.
11
finding that they breached that duty if one were imposed on
them.
Instead of remaining on the scene of the first
altercation while Donald was restrained by Rockelman and they
awaited Wilbraham’s arrival, which is the typical scenario
following a school fight, plaintiff left.
As a result,
plaintiff encountered Donald’s siblings, who apparently took up
Donald’s cause to “get” Briana from plaintiff.
In less than a
minute, Donald broke free from the grasp of the vice-principal
as he was escorting him to the office, and struck plaintiff.
The entire time between the end of the first altercation and the
second was less than one minute, fifteen seconds, and transpired
before the school resource police officer caught up from the
first altercation to the next.
Plaintiff has not articulated a
viable course of action that the defendants could have
undertaken to prevent the second encounter.
As the New Jersey Supreme Court has noted, “schools are
[not] guarantors of students' safety with respect to all
activities during or after dismissal.
A school district's
responsibility has temporal and physical limits . . . .”
Jerkins, 922 A.2d at 1291.
Even though it was unfortunate that
plaintiff was injured in a fight that he did not start, the
absence of any reasonable foreseeability of the altercation
12
between plaintiff and Donald precludes the imposition of
liability on defendants for all claims arising out of
defendants’ alleged duty to protect plaintiff from the harm that
befell him that day.
As for plaintiff’s second theory of liability, that the
defendants imposed unwarranted punishment and criminal charges
on plaintiff for his involvement in the altercations, the facts
do not support any claims based on that theory.
Vice-Principal
Wilbraham explained the school’s discipline policy at the time
and how it was told to the students at the beginning of the
year:
We let them know that they are not to be physically engaged
in any way, shape or form. We let them know that it is
really quite impossible when you’re not there at the scene
to determine exactly what leads to the spark of a physical
event and it is the expectation of this high school that if
somebody swings on you first, it is not your initial
reaction to react and fight back, but to get yourself to an
area that’s safe, whether it be in a teacher’s classroom, I
don’t care, any adult in the building, custodial, janitor,
anybody. It is not the expectation that you start – just
because somebody swung on you first, that you can now begin
to go to town and engage further in fighting. . . . We
expect the student [] to get themself (sic) out of a
negative situation in advance. Certainly if you’re arguing
with another student in the hallway and it’s getting
heated, there’s a certain point where, like even with
adults, you expect somebody to be mature enough and walk
away so it doesn’t become a physical event. Often what we
see in high school because of the maturity level is
opposite.
(Wilbraham Dep. 123:12, 125:12.)
13
Plaintiff admits that instead of walking away from Donald
when he first encountered him, plaintiff and Donald engaged in
10 minutes of arguing and pushing back and forth, and then three
minutes of physical tussling.
This incident alone violates the
school’s policy prohibiting physical contact with another
student.
Once their fight was broken up by a teacher, plaintiff
walked away.
Regardless of whether plaintiff was instructed to
stay there, or it was known to him that he should have done so,
plaintiff became vulnerable to the Pilgrim siblings’ additional
assault.
Even though plaintiff appears to be only the recipient
of physical contact during the second incident, it is undisputed
that the discipline policy applied equally to all students
involved in an altercation, no matter what their level of
involvement.
Indeed, Gilbert, Briana, and Derek, who were not
the main actors, also received nine day suspensions for their
involvement in the second altercation.
Even though plaintiff and his parents feel that the
discipline policy of the school was unfair as it was applied to
him, the school had discretion to enforce its policies as it
deemed appropriate under the circumstances.
See N.J.S.A.
18A:25–2 (allowing a teacher or “other person in authority” to
14
“hold every pupil accountable for disorderly conduct in school
and during recess and on the playgrounds of the school and on
the way to and from school”); N.J.S.A. 18A:37-1 (“Pupils in the
public schools shall comply with the rules established in
pursuance of law for the government of such schools, pursue the
prescribed course of study and submit to the authority of the
teachers and others in authority over them.”); N.J.S.A. 18A:37-4
(providing that the principal may suspend any pupil from school
for good cause); Joye v. Hunterdon Cent. Regional High School
Bd. of Educ., 826 A.2d 624, 641 (N.J. 2003) (citation omitted)
(explaining that school officials have a duty to maintain order
and discipline in the public schools, and are obligated to take
reasonable precautions for the students’ safety and well-being);
G.D.M. v. Board of Education of the Ramapo Indian Hills Regional
High School Dist., 48 A.3d 378, 389 (N.J. Super. App. Div. 2012)
(explaining that N.J.S.A. 18A:37–2 provides for the punishment
and suspension or expulsion from school of any pupil who is
guilty of any of a non-exclusive list of offenses against school
staff, fellow students, or school property).
Moreover, in the event a student or parent challenges a
school’s discipline decision, procedures exist to provide proper
due process to advance that challenge.
15
See N.J.A.C. 6A:16-7.2
(explaining the process of short-term suspensions and how to
object to the imposition of such a sanction); L.K. and A.K. on
Behalf Of Minor Child, L.K. V. Northern Burlington County
Regional Board Of Education, OAL DKT. NO. EDU 6071-12, AGENCY
DKT. NO. 92-4/12, 2014 WL 805303 (N.J. Admin. 2014) (“[U]nder
New Jersey school law, when a school district suspends a student
for more than ten (10) consecutive days, they are required to
provide the student with formal due process procedures,
including written notification to the parents of the charges and
alleged facts and the opportunity for a formal hearing before
the district board of education. N.J.A.C. 6A:16-7.3. By
contrast, a short-term suspension is governed by the less formal
procedures specified under N.J.A.C. 6A:16-7.2.”).
In the same vein, in order for plaintiff’s challenge to the
school signing a criminal complaint against plaintiff for simple
assault to be successful, he must demonstrate that the school
was motivated by malice and without proper cause.
See LoBiondo
v. Schwartz, 970 A.2d 1007, 1022 (N.J. 2009) (explaining that a
claim for malicious prosecution or abuse of process requires the
plaintiff to prove four elements: (1) a criminal action was
instituted by this defendant against this plaintiff; (2) the
action was motivated by malice; (3) there was an absence of
16
probable cause to prosecute; and (4) the action was terminated
favorably to the plaintiff.). 7
Plaintiff has not done so.
All of plaintiffs’ claims hinge on showing that the school
failed to protect plaintiff, and that he was punished
unjustifiably.
The undisputed facts in the record do not
support either theory.
It was not foreseeable to the defendants
that an altercation would occur between Donald, his sisters, and
plaintiff on that day, and the specific circumstances of the two
encounters do not suggest that defendants could have prevented
them.
The discipline imposed on plaintiff by the school was
within its discretion, followed school policy as it had been
explained to the students, did not amount to an abuse of
process, and any challenge to the discipline should have been
made through the proper administrative procedures.
With these
findings, plaintiffs cannot support any of their claims.
7
It appears that in addition to an abuse of process claim,
plaintiff has advanced a claim for defamation based on the
criminal complaint. The facts do not support such a claim. See
DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J. 2004) (“[T]the
elements of a defamation claim are: (1) the assertion of a
false and defamatory statement concerning another; (2) the
unprivileged publication of that statement to a third party; and
(3) fault amounting at least to negligence by the publisher.”).
17
CONCLUSION
For the reasons expressed above, defendants’ motions shall
be granted, and judgment entered in defendants’ favor.
As the case stands now, similar to the claims against
Briana Forbey, dismissed above, see supra note 1, plaintiffs’
claims against Donald, Dynasty, and Diamond Pilgrim remain
outstanding.
It is not clear whether they were ever served with
the complaint when it was filed in state court in October 2011,
or when it was removed to this Court in November 2011, as no one
has entered an appearance on their behalf.
Either plaintiffs
have abandoned those claims by not serving the Pilgrims, or, if
service had been effectuated, plaintiffs have failed to
prosecute their claims against them.
Accordingly, the Court
will dismiss plaintiffs’ claims against the Pilgrim defendants
without prejudice.
An appropriate Order will be entered.
Date: June 8, 2015
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
18
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