K.J. et al v. GREATER EGG HARBOR REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION et al

Filing 57

OPINION filed. Signed by Judge Robert B. Kugler on 8/26/2015. (drw)

NOT FOR PUBLICATION

(Doc. No. 43)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
K.J. and T.J on behalf of
:
K.J., JR. et al.,
:
:
Plaintiffs,
:
:
v.
:
:
GREATER EGG HARBOR
:
REGIONAL HIGH SCHOOL
:
DISTRICT BOARD OF
:
EDUCATION et al.,
:
:
Defendants. :
___________________________________ :

Civil No. 14-145 (RBK/JS)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court on the Motion of Defendants Greater Egg Harbor
Regional High School District Board of Education, Dr. Steve Ciccariello, John Ragan, Erin
Byrnes, James Reina, Michael McGhee, Scott Parker, Megan Hallman, Gregory Ferree, Maggie
Holmes, Paula Londono, Cori Koury, Karen Cavalieri Christine Reina, Erin Hoban, Stephanie
Tarr, Edward Ottepka, and Ramone Valentine, to Dismiss Plaintiffs’ Fourth Amended Complaint
pursuant to Rule 12(c). Plaintiffs assert several claims in their Fourth Amended Complaint,
including but not limited to claims under 42 U.S.C. § 1983, the New Jersey Law Against
Discrimination, the American with Disabilities Act, and the New Jersey Civil Rights Act. For
the reasons stated herein, Defendants’ Motions to Dismiss will be granted in part and denied in
part.

1

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1
This matter arises out of events that took place at a New Jersey high school days after the

tragic shooting at Sandy Hook Elementary School in Newtown, Connecticut on December 14,
2012. (Fourth Amended Complaint (“FAC”) ¶ 19.) 2 Three days after Sandy Hook, one of K.J.,
Jr.’s (“K.J.”) teachers saw a drawing in K.J.’s sketchbook that concerned her. When school
officials reviewed K.J.’s other drawings they found a drawing of what appeared to be a weapon,
which prompted them to detain K.J. and call the police. The police searched K.J.’s home and
found parts that might have been used to make the weapon depicted in the drawing. Shortly
thereafter, K.J. was arrested and placed in a juvenile detention facility, where he remained for
over two weeks. Upon his release, he was placed under house arrest and forced to wear an ankle
monitor until, several months later, the judge presiding over his trial dismissed one of the
charges entirely and found K.J. not guilty on the remaining counts. During and as a result of
these events, K.J. was deprived of at least fourteen months of high school education, and subject
to multiple other constitutional and state law violations.
(a) The Parties
Plaintiffs are members of the Jones family, and all are residents of New Jersey. (Id. ¶ A.)
Kevin Jones (“Kevin”) and Teresa Jones (“Teresa”) are the parents of K.J., and his siblings, K.J.
and C.J. (the “Siblings”) (collectively “Plaintiffs”). (Id.)
The Defendants in this action are many. Beginning with the School Defendants, Greater

1

On a motion to dismiss under Fed. R. Civ. P. 12(c) the Court applies the same standard as Rule 12(b)(6). The
Court must “accept all factual allegations as true and construe the complaint in the light most favorable to the
Plaintiff.” Accordingly, the following facts are taken from Plaintiffs’ Fourth Amended Complaint. See Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
2

See generally James Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, N.Y.
Times, Dec. 14, 2012, http://www.nytimes.com/2012/12/15/nyregion/shooting-reported-at-connecticut-elementaryschool.html.

2

Egg Harbor Regional High School Board of Education (“Egg Harbor”) is a public school district
located in New Jersey. (Id. ¶ B.) Dr. Steve Ciccariello (“Ciccariello”) is the Superintendent of
Schools at Egg Harbor. (Id. ¶ C.) John Ragan (“Ragan”) is the District Supervisor of Special
Services, and is the Anti-Bullying Coordinator for Egg Harbor. (Id. ¶ D.) Erin Byrnes is a
school psychologist and Anti-Bulling Specialist at Cedar Creek High School (“Cedar Creek”), a
school in Egg Harbor. (Id. ¶ E.) James Reina (“Reina”) is the Principal of Cedar Creek, (id. ¶
F), and Michael McGhee (“McGhee”) is the Vice Principal and Supervisor of Special Education
at Cedar Creek. (Id. ¶ H.) Scott Parker (“Parker”) is or was also Vice Principal for Cedar Creek,
and is the Anti-Bullying Liaison for Cedar Creek. (Id. ¶ I.) Christine Reina (“Christine”) is the
Homebound Instruction Coordinator for Cedar Creek. (Id. ¶ G.) Megan Hallman (“Hallman”)
was K.J.’s geometry teacher at Cedar Creek. (Id. ¶ J.) Gregory Ferree (“Ferree”) is a German
teacher and Homebound instructor at Cedar Creek. (Id. ¶ K.) Paula Londono (“Londono”) is a
guidance counselor employed at Cedar Creek. (Id. ¶ M.) Cori Koury (“Koury”) was a case
manager on the Child Study Team at Cedar Creek, and Maggie Holmes (“Holmes”) is also a case
manager on the Child Study Team at Cedar Creek. (Id. ¶ N.) Karen Cavalieri (“Cavalieri”) is
the Supervisor of the Guidance Department at Cedar Creek. (Id. ¶ O.) Erin Hoban (“Hoban”) is
an Art Teacher at Cedar Creek. (Id. ¶ P.) Stephanie Tarr (“Tarr”) is an Event Coordinator with
Egg Harbor. (Id. ¶ Q.) Edward Ottepka (“Ottepka”) is a school resource officer at Cedar Creek,
and Ramone Valentine (“Valentine”) is a school security officer at Cedar Creek. (Id. ¶ R.)
These defendants will be referred to collectively as the “School Defendants.”
Plaintiff has also named several Defendants unaffiliated with Egg Harbor. The
Prosecution Defendants include the Atlantic County Prosecutor’s Office (the “Prosecutor’s
Office”), located in Mays Landing, New Jersey (id. ¶ T), as well as Assistant Prosecutors Lauren

3

Kirk (“Kirk”) and Anne Crater (“Crater”), each of whom work at the Prosecutor’s Office
(collectively the “Prosecution Defendants”). (Id. ¶¶ U-V.) The Police Defendants include the
Galloway Police Department (the “Police Department”), an arm of the Township of Galloway in
Galloway, New Jersey (id. ¶ V), and Detectives McGinty (“McGinty”), Doyle (“Doyle”), Higbee
(“Higbee”), and Hendrickson (“Hendrickson”) of the Police Department (collectively the “Police
Defendants”). (Id.) Finally, the State Defendants include the New Jersey Department of
Education (the “NJDOE”), and Commissioner Cerf (“Cerf”), the Commissioner of the
Department of Education (collectively the “State Defendants”). (Id. ¶ Y.) 3
a. The Facts
Beginning in 2010, K.J. attended Cedar Creek, a magnet program for engineering. (Id. ¶
13.) Though gifted in the areas of art, chemistry, and engineering, (id.), K.J. was also a student
with disabilities who had been classified by Egg Harbor as “Other Health Impaired” for
Attention Deficit Disorder. (Id. ¶ 12.) As a result, K.J. had been given an Individualized
Education Program (“IEP”). (Id.) The IEP noted that K.J. doodled and drew in class, which
Plaintiffs allege allowed K.J. to express himself, as well as concentrate and focus in class. (Id. ¶
15.) To that end, K.J. carried a personal sketchpad with him at school, in which he kept his
drawings and doodles. (Id. ¶ 18.)
Prior to the events at issue in this case, K.J. had only one disciplinary incident while
attending Cedar Creek. (See id. ¶ 22.) On October 20, 2011, K.J. was removed from school and
suspended at first for ten days, and then until the end of January 2012, due to an incident on the
bus. (Id. ¶ 16.) Plaintiffs do not describe the event that took place on or around October 20,

3

An earlier opinion of this Court addressed the Motions to Dismiss of the State Defendants and Prosecution
Defendants. See K.J. et al v. Greater Egg Harbor Regional High School District Board of Education et al, No. 14145 (RBK/JS), 2015 WL 1816453 (D.N.J. April 21, 2015) (denying defendants’ motions in part and granting in
part).

4

2011. K.J. was apparently evaluated as a result of the incident by Dr. Hewitt, Egg Harbor’s
psychiatrist, on October 26, 2011. (Id. ¶ 17.) Based on his review of K.J., Dr. Hewitt
determined K.J. was not a danger to himself or others, and that K.J. had Asperger’s Syndrome.
(Id.)
On December 14, 2012, a tragic shooting occurred at Sandy Hook Elementary School in
Newtown, Connecticut. (Id. ¶ 19.) Three days later, on December 17, 2012, Hallman noticed a
drawing of a “spaceman” K.J. was sketching during geometry class. (Id. ¶ 20.) Based on
Hallman’s concern about the content of K.J.’s drawings, he was called out of class by McGhee
and taken to the Vice Principal’s office late the next day, December 18, 2012. (Id. ¶ 21.) While
K.J. was in the Vice Principal’s office he was repeatedly told by McGhee that he was not in
trouble, though Valentine, the school safety officer, remained in or around McGhee’s office the
entire time. (Id. ¶ 23.) McGhee allegedly manipulated K.J. into showing McGhee the drawings
in K.J.’s sketchpad by leading K.J. to believe that McGhee was genuinely interested in K.J.’s
artwork and designs. (Id. ¶ 24.) Based on McGhee’s supposed interest, K.J. proudly showed
McGhee his drawings. (Id.)
In K.J.’s sketchpad there was an updated drawing of a superhero glove with a flame
coming out of it, a concept drawing which K.J. started two years earlier based on the Ironman
movie. 4 The drawing of the glove was done solely at K.J.’s home, not at school, and was
contained in K.J.’s personal, private sketchbook. (Id. ¶ 26.) K.J. never intended for anyone to
see the glove drawing. (Id. ¶ 25.)
After reviewing the drawings in K.J.’s sketchbook, McGhee decided to keep K.J. in his
office. (Id. ¶ 27.) McGhee also called Teresa and informed her that K.J. was in his office, but

4

See generally IRON MAN (Paramount Pictures 2008).

5

that K.J. was not in trouble. (Id. ¶ 28.) At no point during McGhee’s conversation with Teresa
was she informed that K.J. was in trouble at school. (Id.) While McGhee was speaking with
Teresa on the phone he also apparently contacted the local police department and kept Teresa on
the phone until the police arrived at her home. (Id. ¶ 29.) The fire department, EMS, and bomb
squad also arrived at Teresa’s home soon after the local police. (Id.) Plaintiffs’ home was
searched by the police with Kevin’s consent. (Id. ¶ 31.) Plaintiffs allege this consent was given
only because McGhee “deceived [Teresa] into believing that their son was not in any trouble.”
(Id.) During their search, the police found items such as wires, thermite chemical, and switches,
which were apparently part of K.J.’s science and engineering homework. (Id. ¶ 32.)
Around this time, Reina also apparently issued an “All Call” to all families in the school
district notifying them of what occurred. (Id. ¶ 30.) This “All Call” went out with the
knowledge of Ciccariello. (Id.) Reina also allegedly had bomb-sniffing dogs go through the
school at that time. (Id.) While the police were searching Plaintiffs’ home, K.J. was allegedly
transported somewhere by Ottepka. (Id. ¶ 33.) Though Plaintiffs do not indicate where Ottepka
transported K.J., he apparently did so in a private car, without any other adult present, and
without notifying K.J.’s parents. (Id.)
At some point after the search of Plaintiffs’ home, the Prosecutor’s Office was contacted
by the Police Department. (Id. ¶ 34.) K.J. was charged with a crime and a judge ordered that
K.J. be placed in the Harborfield Juvenile Detention Center (“Harborfield”), where he spent
seventeen days. (Id.) While at Harborfield, K.J. was strip searched and cavity searched. (Id.)
Upon K.J.’s release from Haborfield he was placed under house arrest. (Id. ¶ 36.) This meant
K.J. was confined to his home, and had to wear an ankle bracelet from early January 2013 until
May 23, 2013. (Id.)

6

A criminal trial was held before Judge Jackson on May 21 and May 22, 2013. (Id. ¶ 37.)
Before the trial began, Judge Jackson dismissed the second charge against K.J. (Id.) After
expert testimony was taken, Judge Jackson found K.J. not guilty of the remaining charges against
him because K.J. did not have the requisite malicious intent needed to substantiate the charges.
(Id. ¶ 38.) Judge Jackson also determined, based on expert reports from the State and on behalf
of K.J., that the glove device found in K.J.’s home would not constitute a weapon, even upon
completion. (Id.)
Plaintiffs allege that the School Defendants attempted to expel K.J. from school at some
point prior to March 2014, because he had been arrested in connection with the December 18,
2012, incident. (Id. ¶¶ 35, 42.) K.J. was also denied his right to return to school by the School
Defendants. (Id. ¶ 40.) Instead, K.J. was on home instruction while under house arrest. (Id. ¶
41.) It was not until March 2014, after an Administrative Law action and this action had been
filed, that Egg Harbor allowed K.J. to return to school on a limited basis. (Id. ¶ 42.) In total,
K.J. was prevented from returning to school from December 2012 until March 2014. (Id.)
Additionally, during his period of house arrest, K.J.’s German tutor apparently saw
another one of K.J.’s drawings and attempted to confiscate it from Plaintiffs’ home, on orders
from Reina and Parker. (Id. ¶ 40.) That same spring of 2013 Egg Harbor notified the venue for
a Cedar Creek class trip to Boston that K.J. was a “behavior issue,” which ultimately prevented
him from attending that field trip. (Id. ¶ 43.) Finally, it is generally averred that Egg Harbor
harassed, intimidated, bullied, retaliated against, and cyber-bullied K.J., failed to comply with
the mandatory investigation requirements under the New Jersey Anti-Bullying Bill of Rights,
and created a hostile school environment. (Id. ¶ 44.)
On the basis of the aforementioned facts, Plaintiffs bring twenty-five claims for relief.

7

They are as follows: a claim for violation of Section 504 of the Rehabilitation Act (Count I); a
claim for violation of the Americans with Disabilities Act (the “ADA”) and the Americans with
Disabilities Amendment Act (the “ADAA”) (Count II); a claim for violation of the New Jersey
Civil Rights Act (the “NJCRA”) (Count III); a 42 U.S.C. § 1983 claim for violating K.J.’s Fourth
Amendment rights (Count V); 5 a § 1983 claim for violating K.J.’s First Amendment rights
(Count VI); a § 1983 claim for violating K.J.’s Procedural Due Process rights under the
Fourteenth Amendment (Count VII); a § 1983 claim for violating the Equal Protection clause of
the Fourteenth Amendment (Count VIII); a § 1983 claim for maintaining a custom or practice,
and showing deliberate indifference to K.J.’s rights under the Constitution (Count IX); a § 1983
claim for deliberate indifference to K.J.’s rights under the Constitution (Count X); a § 1983
claim for failure to properly hire, train, and supervise, violating K.J.’s rights under the
Constitution (Count XI); a § 1983 and 42 U.S.C. § 1981 claim for false arrest and false
imprisonment (Count XII); a § 1983 claim for malicious and unconstitutional prosecution (Count
XIII); a 42 U.S.C. § 1985 claim for conspiracy (Count XIV); a claim for violation of the New
Jersey Anti-Bullying Bill of Rights Statute (the “NJ ABBRS”) and Egg Harbor’s AntiHarassment, Intimidation, Bullying, and Retaliation Policy (Count XV); a claim for violating the
New Jersey Law Against Discrimination (the “NJLAD”) based on K.J.’s disability (Count XVI);
a claim for violating the NJLAD by creating a hostile learning environment (Count XVII); a
claim for violating the NJLAD by aiding and abetting the discriminatory actions of others (Count
XVIII); a claim for violating the NJLAD via retaliation (Count XIX); a claim for vicarious
liability (Count XX); a claim for intentional infliction of emotional distress (“IIED”) (Count
XXI); a claim for negligent infliction of emotional distress (“NIED”) (Count XXII); a claim for

5

Though Plaintiffs included a Count IV, it only alleges that all Defendants are “persons” for purposes of the
subsequent § 1983 claims, and contains no substantive allegations of misconduct on behalf of any defendant.

8

defamation, libel, and slander (Count XXIII); a claim for violating Plaintiffs’ right to be free
from false light and invasion of privacy under the Fourteenth Amendment and the common law
(Count XXIV); a claim for negligence, gross negligence, and respondeat superior under the New
Jersey Tort Claims Act (the “TCA”) (Count XXV); and a claim for injunctive and declaratory
relief to enforce K.J.’s Due Process rights under the Individuals with Disabilities Act (the
“IDEA”) (Count XXVI). (See generally FAC.)
(b) Procedural History
Sometime in late 2013 or early 2014, Plaintiffs filed a “Due Process action” and Request
for Emergent Relief in the Administrative Law Forum 6 in New Jersey to address some of
Plaintiffs’ issues concerning his educational rights. (See id. ¶ 6.) The Request for Emergent
Relief was withdrawn when the parties reached a temporary limited settlement agreement
encompassing the period until the end of the school year in 2014. (Id. ¶ 7.) There was a Due
Process hearing date scheduled for June 23, 2014, but the administrative trial was still
unscheduled at the time the FAC was filed. (Id.) On August 21, 2013, Plaintiffs filed a Notice
of Tort Claims, and on February 28, 2014, Plaintiffs filed an Amended Notice of Tort Claims.
(Id. ¶ 11.)
The present action was commenced on January 9, 2014, when Plaintiffs filed their
original Complaint. (Doc. No. 1) The original Complaint was amended four times, including on
January 21, 2014, (Amended Complaint (Doc. No. 5)), February 5, 2014, (Second Amended
Complaint (Doc. No. 7)), April 15, 2014, (Third Amended Complaint (Doc. No. 17)), and
October 14, 2014. (FAC (Doc. No. 32).) The FAC was filed pursuant to the June 20, 2014,
Order of this Court, in which Plaintiffs’ Motion to Amend the Third Amended Complaint was

6

In their Complaint, Plaintiffs refer to the New Jersey Office of Administrative Law as the Administrative Law
Forum.

9

granted and the Motions to Dismiss the Third Amended Complaint, filed by certain School
Defendants and the Prosecution Defendants, were dismissed as moot. (Doc. No. 32.)
Shortly after the FAC was filed, the School Defendants filed a Motion to Dismiss the
FAC. (Doc. No. 43.) Because the pending motions have been briefed by the parties, the Court
proceeds to its discussion of merits.
II.

LEGAL STANDARD
The standard for a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(c) is

the same as that for a motion to dismiss pursuant to Rule 12(b)(6). Rule 12(b)(6) allows a court
to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). When evaluating a motion to dismiss, “courts accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty of Allegheny, 515
F.3d 224, 233 (3d. Cir. 2008)). In other words, a complaint is sufficient if it contains enough
factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
It is not for courts to decide at this point whether the moving party will succeed on the merits,
but “whether they should be afforded an opportunity to offer evidence in support of their
claims.” In re Rockefeller Ctr. Prop., Inc., 311 F.3d 198, 215 (3d Cir. 2002). Yet, while
“detailed factual allegations” are not necessary, a “plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations
omitted) (alteration in original).

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To make this determination, a court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second,
the court should identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 680). Finally, “where
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.” Id. (quoting Iqbal, 556
U.S. at 680). This plausibility determination is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
A complaint cannot survive where a court can infer only that a claim is merely possible rather
than plausible. Id.
III.

DISCUSSION
At the outset, the Court notes that much of Plaintiffs’ 103-page Complaint relies on the

vague practice of group pleading, wherein Plaintiffs allege that all School Defendants engaged in
certain wrongful conduct. See Falat v. Cnty. of Hunterdon, No. 12-6804 (SRC), 2013 WL
1163751, *3 (D.N.J. Mar. 19, 2013) (condemning plaintiff’s group pleading as “impermissibly
vague”). Specifically, Plaintiffs frequently attribute wrongful actions to “said individual
defendants named in paragraph 75, in their individual and official capacities.” (See, e.g., FAC ¶¶
87, 94, 114.) Paragraph 75, however, names seventeen individual School Defendants, in
addition to Egg Harbor, making it next to impossible for the Court to decipher whose actions are
serving as the basis of the alleged cause of action.
Where Plaintiffs have included specific factual allegations, see FAC ¶¶ 12–45 (“Facts
Common to All Counts”), it is still unclear as to which counts these allegations relate. Each of

11

the Complaint’s twenty-six Counts begins with incorporating “each and every allegation set forth
above as if such allegations are set forth at length therein.” (E.g., ¶¶ 46, 54, 61, 73, 82, 87).
Although pleading by incorporation is a common practice, the Counts themselves largely require
the court to guess which factual assertions in the 103-page Complaint support Plaintiffs’
individual claims. See Falat, 2013 WL 1163751, at *3 (refusing “to guess which factual
assertions in the 57–page Complaint are intended to support which legal claims”).
Defendants argue that Plaintiffs’ failure to identify which claims apply to which
defendants is cause for dismissal. (See Defs.’ Br. 6–7.) In their Reply Brief, Plaintiffs fail to
remedy the ambiguity and instead defend its pleading practice, reiterating that “Plaintiffs
specifically state in paragraph 75 each and every name of all of the school defendants that each
count is applicable to.” (Pl.’s Br. 26.) Plaintiffs miss the point. Referring to a numbered
paragraph naming all eighteen School Defendants does not adequately allege which specific
defendants, nor which of their actions, are responsible for the violations alleged. “It is not the
Court’s job to laboriously search the Complaint for factual assertions that could, in theory, be
used to support one legal claim or another. ‘District judges are not archeologists. They need not
excavate masses of papers in search of revealing tidbits. . . .” Id. at *3 (quoting Northwestern
Nat’l Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir. 1994).
Accordingly, the Court dismisses Counts III (New Jersey Civil Rights Act), VII
(Procedural Due Process), VIII (Equal Protection), XVI (NJLAD), XVII (NJLAD – Hostile
Learning Environment), XVIII (NJLAD – Aiding and Abetting), XIX (NJLAD-Retaliation),
Count XX (Vicarious Liability), XXI (Intentional Infliction of Emotional Distress), Count XXII
(Negligent Infliction of Emotional Distress), and Count XXV (Negligence, Gross Negligence,
and Respondeat Superior). In addition, because Count IV merely alleges that all named School

12

Defendants are “persons” under § 1983 but fails to allege any substantive violation, see FAC
¶¶73–81, it, too, is dismissed.
(a) Remaining Claims
(i) Count I–II (Section 504 of the Rehabilitation Act and the ADA) 7
Plaintiffs’ allege violations of the Rehabilitation Act and the ADA on K.J.’s behalf. 8 To
state a claim for a violation of Section 504 of the Rehabilitation Act, a plaintiff must show that
(1) he is a “handicapped individual,” (2) he is “otherwise qualified” for participation in the
program, (3) the program receives “financial federal assistance,” and (4) he was “denied the
benefits of” or “subject to discrimination” under the program. 29 U.S.C. § 794(a); see also
Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991). Similarly, a plaintiff may
maintain a claim for a violation of the ADA by showing the same elements, minus the
requirement that the program receive financial federal assistance, but with the requirement that
the program be provided by a “public entity.” See 42 U.S.C. § 12132 (“Subject to the provisions
of this subchapter, no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.”); see also Helen L. V.
DiDario, 46 F.3d 325, 332 (3d Cir. 1995) (noting that the ADA “extend[ed] section 504’s antidiscrimination principles to public entities.”). Plaintiffs may request both injunctive relief for
violations of Section 504 and the ADA, as well as compensatory damages and other relief
“available in a private cause of action under Title VI of the Civil Rights Act of 1964.” A.W. v.

7

“Section 504 and ADA claims are subject to the same analysis and thus may be addressed at the same time.” See
Patrick B. ex rel. Keshia B. v. Paradise Protectory and Agr. Sch., Inc., No. 1:11–CV–00927, 2012 WL 3233036, *4
(M.D. Pa. Aug. 6, 2012).
8
Defendants move to dismiss Plaintiffs’ derivative claims, arguing that such claims are impermissible under the
IDEA, Section 504, and § 1983. (Defs.’ Br. 22). However, Plaintiffs concede in their Reply Brief that their derivate
claims relate only to those counts sounding in tort law. (See Pl.’s Br. 47–48.) Therefore, the Court considers the
Section 504 and ADA claims only as they pertain to K.J.

13

Jersey City Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007).
Plaintiffs allege violations of Section 504 and the ADA by Egg Harbor, a public school
district in receipt of financial federal assistance. 9 (FAC ¶ 50, 59.) They allege K.J. is disabled
within the meaning of both Section 504 and the ADA because he has been diagnosed with
Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder, and due to his disabilities he
is substantially limited in the major life activities of learning and social interaction. (Id.¶ 49; see
also id. ¶¶ 54, 57 (incorporating into ADA claim the elements pled in Plaintiffs’ Section 504
claim).) They contend that K.J. was “otherwise qualified to participate in school activities,”
including “[Egg Harbor’s] educational program.” (Id. ¶49; see also id. ¶ 58.) Plaintiffs also
allege that, on account of his disabilities, K.J. “was considered a safety risk without
consideration at all for addressing the perception held by the school district” and excluded from
school and school related activities. (Id. ¶ 51; id. ¶ 58 (incorporating ¶ 51 into Count two).)
Defendants request that the Court dismiss Plaintiffs’ Section 504 (Counts I) and ADA
(Count II) claims because they are merely repackaged IDEA claims, which were rendered moot
by the parties’ administrative settlement. (See Defs.’ Br. 3.) Defendants also argue that,
because these claims resound under the IDEA, they are subject to the IDEA’s administrative
exhaustion requirement. (Defs.’ Reply Br. at 2–4.)
The Court disagrees with Defendants and finds Plaintiffs’ claims under Section 504 and
the ADA are not moot. The IDEA settlement resolved only educational compensation for

9

Plaintiffs’ Complaint alleges violations of Section 504 and the ADA only by Egg Harbor. It does not allege that
any other School Defendant violated Section 504 or the ADA. (See FAC ¶¶50–51, 58.) In their Brief, however,
Plaintiffs appear to argue that the individual School Defendants violated these provisions as well. (See Pl.’s Br. 26.)
Because Plaintiffs did not assert such allegations in their Complaint, the Court will only note that Section 504 and
the ADA do not create individual liability for public employees. (See A.W. v. Jersey City Pub. Sch., 486 F.3d 791,
804 (3d Cir. 2007) (“Suits may be brought pursuant to Section 504 against recipients of federal financial assistance,
but not against individuals.” (citing Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002))); Calloway v. Boro of
Glassboro Dep’t of Police, 89 F. Supp. 2d 543, 557 (D.N.J. 2000) (citing cases from other districts and circuits for
the proposition that “individual defendants cannot be held liable for violations of Title II of the Disability Act”).

14

Plaintiff’s IDEA claims. Here, Plaintiff is seeking relief in the form of compensatory damages
for alleged discrimination under the ADA and Section 504, FAC ¶¶ 53, 60, a form of relief
appropriate for both the alleged violations. 10 A.W., 486 F.3d at 804. Thus, the relief Plaintiffs
seek in Counts I and II differs from that received in the administrative settlement. As such, the
Court declines to dismiss Counts I and II against Egg Harbor on the basis of mootness.
For the same reason, the Court finds that the Plaintiffs have not bypassed the IDEA’s
exhaustion requirement. Exhaustion of administrative remedies is required “[w]here a plaintiff
brings an action under Section 504 or the ADA seeking relief that is also available under the
IDEA.” Derrick v. Red Lion Area Sch. Dist., 586 F. Supp. 2d 282, 295 (M.D. Pa. 2008). Here,
however, Plaintiffs seek compensatory damages for the alleged discrimination under Section 504
and ADA, a remedy unavailable under the IDEA. See Chambers ex rel Chambers v. Sch. Dist.
Of Phil. Bd. of Educ., 587 F.3d 176, 186 (3d Cir. 2009) (“Given the Supreme Court’s
pronouncement in [Sch. Comm. of the Town of Burlington v. Dept. of Educ. of Mass., 471 U.S.
359 (1985)] as well as the plain language of and structure of the IDEA, we agree with our sister
circuits, and now hold, that compensatory and punitive damages are not an available remedy
under the IDEA.”); Patrick B. ex rel Keshia B. v. Paradise Protectory and Agr. Sch., Inc., No.
1:11-CV-00927, 2012 WL 3233036, *4 (M.D. Pa. Aug. 6, 2012) (“A key difference between
Section 504, the ADA and the IDEA is that compensatory damages, while not available under
the IDEA, are available under Section 504 and the ADA.”); J.L. v. Ambridge Area Sch. Dist.,
622 F. Supp. 3d 257, 274 (W.D. Pa. 2008) (declining to dismiss plaintiff’s Section 504 and ADA

10
Plaintiffs assert in their brief that they are also seeking punitive damages, but such a prayer for relief is not
included in their Complaint. (See FAC ¶ 53 (asserting that Defendants’ violations entitle K.J. to compensatory
damages); id. ¶ 60 (same)).) The Court will simply note that punitive damages are not an available remedy for
Section 504 or ADA violations. See Williams v. Hayman, 657 F. Supp. 2d. 488, 503 (“[P]unitive damages are not
available under Title II of the ADA as a matter of law); A.W., 486 F.3d at 804 (providing that punitive damages are
unavailable for Section 504 violations).

15

claims for failure to exhaust because plaintiff sought monetary damages and attorney’s fees for
the denial of plaintiff’s educational rights, and such relief was not available in the underlying
administrative forum).
Accordingly, the Court finds that Plaintiffs have set forth sufficient facts to plausibly
conclude that they are entitled to relief for Egg Harbor’s alleged violations of Section 504 and
the ADA. Defendants’ Motion to Dismiss Counts I and II is denied.
(ii) Section 1983 Claims
Plaintiffs bring suit under 42 U.S.C. § 1983 against Egg Harbor as well as all individual
School Defendants, in both their individual and official capacities, for a number of constitutional
violations, including but not limited to violations of K.J.’s rights under the First, Fourth, and
Fourteenth Amendments of the U.S. Constitution.
As an initial matter, the Court will address Defendants’ request to summarily dismiss all
of Plaintiffs’ § 1983 claims (Counts IV through IX). Defendants contend that Counts IV
through XI are merely “repackaged” claims stemming from IDEA violations and should
therefore be dismissed because “Congress did not intend § 1983 to be available to remedy
violations of the IDEA.” (Defs.’ Reply Br. 6 (quoting A.W., 486 F.3d at 806).)
Although the Court agrees with Defendants’ general statement of the law, it disagrees
with Defendants’ application thereof. Section 1983 does not remedy violations of rights created
by the IDEA itself, but § 1983 is available to remedy constitutional violations such as those
alleged here. See MG ex rel. LG v. Caldwell-West Caldwell Bd. of Educ., 804 F. Supp. 2d 305,
316 (3d Cir. 2011) (“[A] § 1983 action is not available to remedy violations of IDEA-created
rights.” (quoting A.W., 486 F.3d at 802)). Accordingly, the Court declines to summarily dismiss
all of Plaintiffs’ § 1983 claims and will review the remaining claims in turn.

16

1. Section 1983 Claims against Egg Harbor (Counts V, VI, IX)
Plaintiffs allege that Egg Harbor is liable under § 1983 for the violation of K.J.’s
constitutional rights. Specifically, in Count IX, Plaintiffs allege that Egg Harbor is liable
because its policies caused the violations of K.J.’s constitutional rights. (See FAC ¶ 139–53
(alleging violations of K.J.’s “Federally protected rights to return to school,” “Federally
protected rights to due process,” and “equal protection rights”).) Defendants’ argue for dismissal
of Plaintiffs’ § 1983 claims against Egg Harbor because Plaintiffs have failed to adequately
allege that an Egg Harbor policy or custom caused the alleged constitutional violations. (Defs.’
Br. 8–9; Defs.’ Reply Br. 8–9.)
A plaintiff may not hold a municipal entity such as a school district liable under 42
U.S.C. § 1983 for the constitutional violations of its employees. See Monell v. Dep't of Soc.
Servs. of New York, 436 U.S. 658, 691 (1978); Moeck v. Pleasant Valley Sch. Dist., 983 F.
Supp. 2d 516, 523 (M.D. Pa. 2013). Instead, municipal liability “must be founded upon evidence
that the government unit itself supported a violation of constitutional rights.” Watson v.
Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007) (citing Monell, 436 U.S. 658, 691–95 (1978)).
Thus, liability is appropriate when a plaintiff demonstrates a particular policy or custom,
“whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy,” and that such policy or custom has been “the moving force” behind the
deprivation of an individual's constitutional rights. Id. at 694.
Municipal policy generally involves a “statement, ordinance, regulation, or decision
officially adopted and promulgated by [a local governing] body’s officers.” Simmons v. City of
Phila., 947 F.2d 1042, 1059 (3d Cir.1991) (citing Monell, 436 U.S. at 690). A municipal custom,

17

on the other hand, refers to those official practices which, despite lacking the formal approval of
a policy, are “so permanent and well settled ... as to [have] the force of law.” Id. at 1059 (citing
Monell, 436 U.S. at 691).
Drawing all inferences in favor of Plaintiffs, as the Court is obliged to do at this stage, the
Court nonetheless finds that Plaintiffs have insufficiently alleged liability of Egg Harbor.
Plaintiffs have identified two purported Egg Harbor policies. First, Plaintiff alleges that the
individual school defendants were enforcing a “written policy set forth in the 2012 Cedar Creek
High School Parent Handbook . . . which applied to all schools throughout the school district.”
(Id. ¶ 146.) Plaintiffs assert that because the policy omits the word “disability,” it “enables equal
education for students, other than those with disabilities.” (Id. ¶ 147–148.) However, there are a
myriad of reasons why the word disability was omitted, including the reasonable explanation that
the policy ensures an equal education for all students with or without disabilities. Inferring a
district-wide policy of discrimination against students with disabilities is not plausibly concluded
from the omission of the word “disability.” See Santiago v. Warminster Tp., 629 F.3d 121, 128
(“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw a reasonable inference that the defendant is liable for the misconduct alleged.”); see also
Iqbal, 556 U.S. at 679 (providing that a complaint cannot survive where a court can infer only
that a claim is merely possible rather than plausible).
As to the second policy, Plaintiffs allege that Egg Harbor had a “written district wide
policy contained in [its] parent handbook” that “ensure[d] due process” by requiring the
Superintendent or Board of Education to review a student’s file in a disciplinary matter. (FAC ¶
150). However, Plaintiff also concedes that Defendants “deviated from its known policy and
procedure” and did not apply its procedures in K.J.’s case. (Id.; Pl.’s Br. 28-29.) Alleging a

18

single deviation from policy does not give rise to municipal liability under the Monell standard.
See Monell, 436 U.S. at 691 (“[T]he language of § 1983, read against the background of the
same legislative history, compels the conclusion that Congress did not intend municipalities to be
held liable unless action pursuant to official municipal policy of some nature caused a
constitutional tort.”); see also Gretzula v. Camden Cnty. Tech. Schs. Bd of Educ., 965 F. Supp.
2d 478, 479 (D.N.J. 2013) (rejecting plaintiff’s argument that school board was liable for failing
to adhere to its anti-discrimination laws and regulations without “allegations indicating that there
was an obvious pattern of misconduct relating to compliance with its procedures”).
Accordingly, the Court dismisses Counts V, VI, and IX to the extent they allege liability
of Egg Harbor.
2. Section 1983 Claims Against Individual School Defendants in
Their Official Capacities
Plaintiffs bring a number of § 1983 claims against the individual School Defendants in
both their individual and official capacities. (Pl.’s Br. 79–80). However, a suit against a
municipal official in her official capacity is treated as a suit against the municipality itself. See
Morrison v. Phillips, No. 06–812 (JBS), 2008 WL 4309215, *6 (D.N.J. Sept. 16, 2008)
(“Plaintiff’s claims against each individual Defendant in his or her official capacity ‘is the same
as a suit against the entity of which the officer is an agent.’ ” (quoting McMillian v. Monroe
Cnty., Ala., 520 U.S. 781, 785 n.2 (1997))); Pribula v. Wyo. Area Sch. Dist., No. 3:06-CV-2039,
2007 WL 2065830, *5 (M.D. Pa. July 16, 2007) (“Suits against municipal employees acting in
their official capacities are treated as claims against the municipal entities that employ these
individuals.”). The Court will therefore dismiss all remaining § 1983 claims against the
individual defendants in their official capacities as being duplicative of Plaintiffs’ claims asserted
against Egg Harbor. This leaves remaining the § 1983 claims against the individual School
19

Defendants in their individual capacities.
3. Count V (Fourth Amendment)
Count V of Plaintiff’s Complaint alleges that all individual school defendants violated
K.J.’s Fourth Amendment rights. Specifically, Plaintiff alleges that McGhee’s search of K.J.’s
sketchpad and detainment of K.J. constituted an unreasonable search and seizure, in violation of
K.J.’s Fourth Amendment rights. Plaintiffs assert that Ottepka (the School Resource Officer)
and Valentine (the School Safety Officer) assisted McGhee in searching K.J.’s notebook and
holding K.J. in McGhee’s office. (FAC ¶¶ 83, 86.) Defendants challenge the sufficiency of the
Plaintiff’s Complaint to set forth a legally cognizable claim under the Fourth Amendment.
Because Count V contains factual allegations only with respect to McGhee, Ottepka, and
Valentine, see (FAC ¶¶ 93–84), the Court dismisses Count V as to all remaining individual
School Defendants. 11
The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend IV.
The Fourteenth Amendment extends this constitutional guarantee to searches and seizures by
state officers. New Jersey v. T.L.O., 469 U.S. 325, 335 (citing Elkins v. United States, 364 U.S.
206, 213 (1960)). As state officers, public school officials, too, are subject to the Fourth
Amendment’s prohibition on unreasonable searches and seizures. Id. at 740.
However, “[t]he school setting requires some easing of the restrictions to which searches
by public authorities are ordinarily subject.” T.L.O., 469 U.S. at 340. Because school officials

11

Count V alleges facts with respect to Hallman, (FAC ¶84), but it is not clear from the face of the Complaint if
Plaintiffs are asserting a Fourth Amendment claim against her. If Plaintiffs are asserting such a claim, the claim as
pled must fail. Count V alleges that Hallman “noticed a drawing of a spaceman that K.J. was sketching during
class” and “became concerned.” (FAC ¶¶ 20-21). Even when taken as true, these limited facts do not allege that
Hallman violated K.J.’s Fourth Amendment rights. Indeed, Plaintiffs do not allege that Hallman engaged in a search
or seizure of K.J. at all.

20

must effectively balance a student’s privacy interest against the “school’s equally legitimate need
to maintain an environment in which learning can take place,” the Fourth Amendment standard
stops short of probable cause. Id. The search must instead be reasonable under the
circumstances, meaning it must be “justified at its inception” and “reasonably related in scope to
the circumstances which justified the interference in the first place.” Id. at 743 (internal
quotation marks and citations omitted). A search is justified so long as there is “a moderate
chance of finding evidence of wrongdoing.” Safford Unified Sch. Dist. No. 1 v. Redding, 557
U.S. 364, 371 (2009). Similarly, a seizure of a student in public school is also governed by the
reasonableness standard. See Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141,
148 (3d Cir. 2005) (joining other U.S. Courts of Appeals in adopting the reasonableness
standard).
At this juncture, the Court accepts all factual allegations as true and views them in the
light most favorable to the non-moving party. Fowler, 578 F.3d at 210. The court considers
only whether any reasonable reading of the complaint could entitle the plaintiffs to relief. Id.
Using this standard as its lens, the Court finds that Count V does not allege a plausible Fourth
Amendment claim against McGhee, Ottepka, or Valentine under the reasoning of T.L.O.
Plaintiff alleges that McGhee and the officers “carr[ied] out a search of K.J.’s private personal
sketchpad without any reasonable basis for such a search,” “manipulate[ed] K.J. [in]to . . .
show[ing] them his sketchpad” and “caused K.J. to be seized and held against his will by Mr.
McGhee.” (FAC ¶¶ 83, 86–87.) After viewing K.J.’s notebook and becoming further
concerned, McGhee called the police and K.J.’s mother. However, Plaintiff also asserts that
McGhee looked at K.J.’s notebook only after Hallman reported her concern about K.J.’s
drawings. That K.J.’s teacher had such an individualized suspicion or concern contradicts

21

Plaintiffs’ conclusory allegation that the search was not based on any reasonable basis. See
Safford, 557 U.S. at 371 (determining the reasonableness of a search by looking to “which
known facts imply prohibited conduct, the specificity of the information received, and the
reliability of its source”).
Plaintiff also has not pleaded facts alleging that the initial search was unreasonable in
scope or unrelated to the objective of the search. Upon receiving Hallman’s concern, McGhee
asked K.J. if he could see his drawings, and K.J. proudly showed him. Plaintiffs do not suggest
that McGhee searched any of K.J.’s belongings other than his sketchpad, the object of Hallman’s
concern. The encounter took place in the privacy of McGhee’s office with K.J. present, thereby
limiting the intrusion. As such, the Court finds that Plaintiffs have insufficiently alleged that
McGhee, Ottepka, and Valentine conducted an unreasonable search in violation of K.J.’s Fourth
Amendment rights.
Lastly, Count V has alleged little to no facts upon which the Court could find that
detaining K.J. in McGhee’s office was unreasonable. In fact, the only mention of K.J.’s
detainment in Count V states as follows:
86. Said individual defendants named in paragraph 75, in their individual and
official capacities, acted under color of law, caused K.J. to be seized and held
against his will by Mr. McGhee and a resource officer in Mr. McGhee’s office,
and the School Safety Officer, in violation of his rights under the Fourth
Amendment.
(FAC ¶ 86.) The Court has no indication of how long K.J. was kept in McGhee’s office
prior to K.J.’s mother or the police being called. Plaintiffs have not alleged sufficient
facts to demonstrate that questioning K.J. in McGhee’s office was so unreasonable as to
give rise to a Fourth Amendment claim.
Count V is therefore dismissed.

22

4. Count VI (First Amendment)
Plaintiffs allege that all School Defendants violated K.J.’s First Amendment rights, but
Count VI provides factual assertions only as to Reina, McGhee, Hallman, and Ciccariello.
Therefore, the Court considers Plaintiffs’ First Amendment claim only as it pertains to these
individual School Defendants and dismisses Plaintiff’s First Amendment Claim as to all others.
“The First Amendment unquestionably protects the free speech rights of students in
public school.” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 926 (3d Cir.
2011). However, students’ constitutional rights “are not automatically coextensive with the
rights of adults in other settings” because the First Amendment must be applied with regard to
the unique circumstances present in the school environment. Id. (quoting Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 506, 506 (1969)). Thus, the Supreme Court has held that the
speech of public school students may not be abridged unless the speech will “materially and
substantially interfere with the requirements of appropriate discipline in the operation of the
school.” Tinker, 393 U.S. at 509. A “mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint” is insufficient. J.S. ex rel. Snyder, 650 F.3d at
926 (quoting Tinker, 393 U.S. at 509). Lastly, “Tinker requires a specific and significant fear of
disruption, not just some remote apprehension of disturbance.” Id. (internal quotation marks
omitted).
At this stage in the pleadings, and with the particular facts alleged, the Court cannot
determine whether school officials were reasonable in determining that K.J.’s drawings were
likely to materially and substantially interfere with school operations such that suspension was
necessary. Taking Plaintiffs’ facts as true, K.J. did not distribute his drawing among the class,
and indeed shared it with McGhee only upon his expressed interest and assurance that K.J. was

23

not in any trouble; K.J.’s disability and inclination to draw and doodle were known to his teacher
and school administrators; and the school district’s psychologist had previously determined that
K.J. was not a danger to himself or others. Based on these facts, the Court cannot say as a matter
of law that it was reasonable for school officials to foresee a material disruption to school
operations or, by extension, that K.J.’s punishment was reasonable. For these reasons, the Court
declines to dismiss Plaintiffs First Amendment claim with respect to Reina, McGhee, and
Ciccariello.
However, even when taking Plaintiff’s factual assertions as true, Plaintiffs have not
pleaded facts sufficient to allege a plausible First Amendment claim against Hallman. Plaintiff
alleges only that Hallman expressed her concern about K.J.’s drawings. They do not allege that
Hallman is responsible for the decision to punish or suspend K.J. on account of his drawings.
Plaintiffs’ First Amendment claim against Hallman is therefore dismissed.
(iii) Count XIV (Conspiracy)
Plaintiffs allege that all individual School Defendants were together part of a conspiracy
to deprive K.J. of his constitutional rights. 12 (FAC ¶ 204.) Accordingly, to survive a motion to
dismiss, plaintiffs must assert “(1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)
whereby a person is injured in his person or property or deprived of any right or privilege of a
citizen of the United States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.2005) (citing
United Bhd. Of Carpenters & Joiners v. Scott, 463 U.S. 825, 828–29 (1983)). Moreover,
“allegations of a conspiracy must provide some factual basis to support the existence of the

12

Because Plaintiffs do not specify, the Court assumes that Plaintiffs allege a violation 42 U.S.C. § 1985(3), titled
“Depriving persons of rights of privileges.”

24

elements of a conspiracy: agreement and concerted action.” Capogrosso v. The Supreme Court
of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (citing Crabtree v. Muchmore, 904 F.2d 1475,
1481 (10th Cir.1990)).
Plaintiffs have offered no facts to support their conclusory allegation that Defendants
were part of a conspiracy to deprive K.J. of his rights. Indeed, plaintiffs make no mention of an
agreement or concerted action among the defendants. As such, the Court dismisses Count XIV
of the Complaint.
(iv) Count XV (New Jersey Anti-Bullying Bill of Rights Act)
Count XV of Plaintiffs’ Complaint alleges that all School Defendants violated New
Jersey’s Anti-Bullying Bill of Rights Act. N.J. Stat. Ann. § 18A:37–13 et seq. Despite the Act’s
specific language stating that it “does not create or alter any tort liability,” see id. § 18A:37–37,
Plaintiffs contend that a violation of the statute “would be negligent or gross negligent conduct.”
(Pl.’s Br. 42). The Court disagrees. The Act plainly states that it creates no tort liability, and at
least one court in this district has previously recognized as much. See Thomas v. East Orange
Bd. of Educ., 998 F. Supp. 2d 338, 345 (D.N.J. 2014) (finding that violations of the Act could
not give rise to tort liability, namely negligent infliction of emotional distress). Accordingly,
Count XV is dismissed as to all Defendants.
(v) Count XXIII (Defamation)
Plaintiffs bring a defamation claim, alleging that School Defendants made numerous false
statements that, among other things, “were injurious to K.J.’s reputation and subjected him to
investigation, hatred, contempt, [and] ridicule.” (See FAC ¶ 284.) Defendants contend that
Plaintiffs’ defamation claim should be dismissed because Plaintiffs have failed to allege that any
of the statements made by the defendants were false. (Defs.’ Br. 21.)

25

Under New Jersey defamation law, “the plaintiff bears the burden of establishing, in
addition to damages, that the defendant ‘(1) made a defamatory statement of fact (2) concerning
the plaintiff (3) which was false, and (4) which was communicated to a person or persons other
than the plaintiff.’ ” Petersen v. Meggitt, 969 A.2d 500, 507 (N.J. Super. Ct. App. Div. 2009)
(quoting Feggans v. Billington, 677 A.2d 771, 775 (App. Div. 1996)). The plaintiff also bears
the burden of proving fault—either negligence or malice—depending on whether the matter is
one of private or public concern. Id.
Taking these elements into account, Plaintiffs claims for defamation fail for a number of
reasons. First, Plaintiffs often fail to identify even the general content of the statements it alleges
are defamatory. (See, e.g., FAC ¶ 284 (“Statements made by Mr. McGhee, Mr. Reina, and
Stephanie Tarr to the police and/or to the Smithsonian . . . were false and injurious to K.J.’s
reputation . . . .”).) Second, when Plaintiffs do identify the alleged defamatory statements, they
nevertheless fail to provide a factual basis for the allegation that the statement was false. For
example, Plaintiffs assert that McGhee “allegedly contacted the police department in December
2012, and informed them about the drawing he had discovered as a result of his inappropriate
and unfounded search of K.J.’s personal sketchpad.” (FAC ¶ 287.) However, Plaintiffs allege
no facts suggesting that McGhee’s statements to police were false. (See id. (alleging only that
“said statements to police were false and defamatory in nature”).). Finally, other assertions made
by Plaintiffs fail to specify which defendant made the defamatory statements or to whom they
were made. (See id. ¶ 291 (“Said knowingly false information and defamatory statements made
by said individual school defendants . . . were disseminated and continue to be disseminated
through news and social media and can still be found today on the Internet.”).)
Such vague and conclusory allegations cannot withstand a motion to dismiss. Therefore,

26

the Court dismisses Count XXIII.
(vi) Count XXIV (Invasion of Privacy: False Light)
To state a claim for the tort of false light, a plaintiff must allege (1) placement in a false
light that would be highly offensive to a reasonable person and that (2) “the actor had knowledge
of or acted in reckless disregard as to the falsity of the publicized matter and the false light in
which the other would be placed.” Leang v. Jersey City Bd. of Educ., 969 A.2d 1097, 1116 (N.J.
2009). “The publicized material in a false-light claim must constitute a ‘major misrepresentation
of [plaintiff's] character, history, activities, or beliefs.’” Romaine v. Kallinger, 537 A.2d 285,
295 (N.J. 1988) (citation omitted).
Plaintiffs false light claim fails for similar reasons as did their claims for defamation.
Plaintiffs’ allegations do not identify what information was shared other than to say that
“information about K.J.’s disability” was disclosed. (FAC ¶ 304.) Even then, Plaintiffs do not
specify which defendant disclosed the information. (See id. (“Information about K.J.’s disability
was disclosed to the press by individual defendant school personnel.”).) Plaintiffs also contend
that “articles and news stories contained images of bombs and bomb making materials, none of
which were found and none of which K.J. had,” but Plaintiffs do not factually connect School
Defendants’ actions to the news articles and stories allegedly holding K.J. in a false light. (FAC
¶ 305.) Because Plaintiffs have not stated a claim to relief that is plausible on its face, the Court
dismisses Count XXIV.
IV.

LEAVE TO AMEND
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a

curative amendment unless such an amendment would be inequitable or futile.” Phillips, 515
F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). Indeed, even when “a

27

plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss
it, the court must inform the plaintiff that he has leave to amend within a set period of time,
unless amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir. 2002).
Because the Court finds that Plaintiffs may be able to cure some of the pleading
deficiencies identified above, the Court will grant Plaintiffs one final opportunity to seek leave to
amend their FAC within fourteen days of the date of this Opinion and accompanying Order. 13
Plaintiffs may not seek leave to amend Count XV (Anti-Bullying Bill of Rights Act) because any
amendment thereof would be futile. With respect to the Counts summarily dismissed because of
Plaintiffs’ impermissibly vague group pleading, Plaintiffs must provide the Court in any
proposed Amended Complaint factual allegations identifying which defendants, and which of
their actions, are responsible for the violations alleged in each count.
V.

CONCLUSION

For the foregoing reasons, the Defendants’ Motion to Dismiss will be GRANTED IN PART
and DENIED IN PART. An appropriate order shall enter today. Plaintiffs shall have fourteen
(14) days from the date of this Opinion and accompanying Order to file a motion seeking leave
to amend their Fourth Amended Complaint.

Dated:

8/26/2015

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

13

If Plaintiffs files a Motion for Leave to Amend the FAC, it shall attach to the Motion a copy of the proposed Fifth
Amended Complaint, as required by Loc. Civ. R. 7.1(f).

28