FERNANDEZ v. PEMBERTON TOWNSHIP HIGH SCHOOL et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 1/27/17. (jbk, )

NOT FOR PUBLICATION

[Docket No. 1]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

C.M. and CATHERINE P.
FERNANDEZ,
Plaintiffs,

Civil No. 16-9456 (RMB/JS)
OPINION

v.
PEMBERTON TOWNSHIP HIGH SCHOOL,
et al.,
Defendants.

Plaintiffs C.M., a minor, and her mother, Catherine P.
Fernandez (together, the “Plaintiffs”) filed this civil rights
action on December 19, 2016, along with an application to
proceed in forma pauperis (“IFP”) [Docket Nos. 1, 1-1].
Plaintiffs have established their indigency, and leave to
proceed in this Court without prepayment of fees is authorized.
See 28 U.S.C. § 1915.

The IFP application will be granted.

Therefore, the Court will review the Complaint as required by
28 U.S.C. § 1915(e)(2)(B).
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff C.M. is a high school student in Pemberton

Township High School with Attention Deficit Hyperactivity
Disorder.

Compl. p. 15.

Plaintiffs allege that, on January 14,

2015, C.M. was tripped by another student, causing C.M. to

injure her knee and damage her cellular phone.
¶ B.1.

Compl. p. 22

C.M. was taken to the hospital and evaluated by an

orthopedic specialist.

Compl. p. 22 ¶¶ B.2-4.

C.M. attended

physical therapy sessions for several weeks after the alleged
incident and continues to have pain in her knee.
¶¶ B.4-8.

Compl. p. 22

Plaintiffs also allege that, on or around May 12,

2015, C.M. was bitten and bruised by another student.

Compl.

p. 23 ¶ B.10.
According to Plaintiffs, C.M. was harassed by other
students because of her disability and her gender.
¶ C.15.

Compl. p. 23

Plaintiff Fernandez, C.M.’s mother, reported the

incidents to the assistant principal.

As to the first incident,

the assistant principal and a school counselor reviewed the
surveillance video and interviewed the alleged harasser.
counselor also interviewed C.M.
p. 16.

The

OCR Determination, Compl.

As to the second incident, an assistant principal

interviewed teachers at the school and spoke with C.M.
Ultimately, no formal harassment investigation was opened,
because the school officials determined “because it was not a
harassment, intimidation or bullying incident; rather, the
incident involved the student spending time with her boyfriend
and a parent not wanting her to spend time with [the other
student].”

Id. p. 18.

2

Despite these steps, Plaintiffs contend that the school
officials and school board failed to properly investigate their
allegations.

Plaintiffs claim that C.M. has been improperly

excluded from certain school activities as a result of the
school officials’ failure to investigate and address Plaintiffs’
allegations of sex and disability discrimination.

Compl. p. 23

¶ C.15 – p. 24 ¶¶ C.15-21.
On or about June 25, 2015, Plaintiff Fernandez instituted a
complaint against the Pemberton Township School District (the
“School District”) with the U.S. Department of Education Office
for Civil Rights (“OCR”).

In addressing the complaint, the OCR

explained that:
You [Fernandez] alleged that the District
discriminated against your daughter (the Student)
[C.M.] on the bases of her disability and sex, by
failing to respond appropriately to the complaints you
made on or about January 14, 2015, that a student
(Student A) subjected the Student bullying and
harassment because of her disability and sex
(Allegation 1); and on or about May 12, 2015, that a
different student (Student B) subjected the Student to
bullying and harassment because of her disability and
sex (Allegation 2). You also alleged that the
District retaliated for your complaints of sex and
disability harassment, by reporting you to the New
Jersey State Division of Youth and Family Services
(NJSDYF) in or around May 2015 (Allegation 3).
OCR Determination, Compl. p. 11.1

1

Plaintiffs appear to incorporate by reference the
allegations and findings set forth by the OCR in its March 22,
2016 determination, which is attached to the Complaint.
3

The OCR considered the allegations in light of Section 504
of the Rehabilitation Act of 1973 (“Section 504”), as amended,
29 U.S.C. § 794, Title II of the Americans with Disabilities Act
(the “ADA”), 42 U.S.C. § 12131, et seq., and Title IX of the
Education Amendments of 1972 (“Title IX”), as amended, 20 U.S.C.
§ 1681, et seq., as well as the relevant implementing
regulations.

The OCR determined, as a preliminary matter, that

the School District failed to provide appropriate notice of its
Title IX, Section 504, and ADA Coordinators, as required by the
regulations implementing each of these statutes.
Determination, Compl. p. 13.

OCR

The OCR also determined that the

School District’s policy against harassment, intimidation, and
bullying did not comply with the regulations implementing Title
IX, Section 504, or the ADA.

Id. p. 14.

According to the OCR’s

determination, the School District agreed to implement a
resolution agreement that addresses these concerns and to
conduct a supplemental investigation, the results of which were
to be communicated to Plaintiff Fernandez.
p. 10, 22.

Id. p. 15; Compl.

Plaintiffs contend that the School District has

failed to comply with the resolution agreement.

Compl. p. 22.

As to Fernandez’s allegation that C.M. was harassed by
another student due to her disability and sex on or around
January 14, 2015, the OCR determined that:

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the District was on notice of an allegation of
disability harassment, but failed to take effective
action to determine if harassing conduct occurred on
the basis of the Student’s disability, as alleged;
whether it created a hostile environment for Student;
and if so, to stop the harassment, prevent its
recurrence, and as appropriate, remedy its effects.
. . . With respect to the portion of complainant’s
allegation that the District failed to respond to her
complaint of sexual harassment regarding Allegation 1,
OCR determined that there was no evidence to
substantiate that the complainant filed the complaint
on this basis.
OCR Determination, Compl. p. 17.
The OCR also evaluated the School District’s response to
Fernandez’s complaint that C.M. had been bruised and bitten by
another student, on or around May 12, 2015.

The OCR found that:

the District was on notice of an allegation of sexual
harassment, but failed to take effective action to
determine if sexually harassing conduct occurred, as
alleged; whether it created a hostile environment for
the Student; and if so, to stop the harassment,
prevent its recurrence, and as appropriate, remedy its
effects. . . . With respect to the portion of
complainant’s allegation that the District failed to
respond to her complaint of disability harassment
regarding Allegation 2, OCR determined that there was
no evidence to substantiate that the complainant
reported the complaint on this basis.
Id. p. 19.

As to Fernandez’s claims of retaliation, the “OCR

determined that there was insufficient evidence to substantiate
the complainant’s allegation that the District retaliated for
her complaint of sex and disability harassment, by reporting her
to the DCPP in or around May 2015.”

Id. p. 21.

The OCR

determination further stated that “[t]he complainant may have

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the right to file a private suit in federal court whether or not
OCR finds a violation.”
II.

Id.

STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court must

screen a complaint filed by plaintiffs who are proceeding in
forma pauperis, and dismiss any claim that is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune
from such relief.
A complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.”
R. Civ. P. 8(a)(2).

Fed.

A complaint must contain sufficient 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

“A claim has facial plausibility when the

plaintiff pleads factual conduct that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. (quoting Twombly, 550 U.S. at 556).

“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”
at 679.

Id.

In other words, “a complaint must do more than allege

the plaintiff’s entitlement to relief.

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A complaint has to

‘show’ such an entitlement with its facts.”

Fowler v. UPMC

Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
Courts must liberally construe pleadings filed by pro se
litigants.

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

If a

complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
amendment.

Grayson v. Mayview State Hospital, 293 F.3d 103, 108

(3d Cir. 2002).
III.

DISCUSSION
On December 19, 2016, the Court received Plaintiffs’

Complaint against Pemberton Township High School, Pemberton
Township Board of Education (together, the “Pemberton
Defendants”), as well as three “staff members,” John Bamber,
Ida Smith, and Kathleen Devlin (collectively, the “Individual
Defendants”).

Plaintiffs assert claims under Section 504 of the

Rehabilitation Act, Title II of the ADA, and Title IX of the
Education Amendments of 1972.

Plaintiffs claim that they have

both suffered injuries as a result of the Defendants’ alleged
discrimination and seek punitive damages and compensatory
damages.
As a preliminary matter, the Court notes that Plaintiff
Fernandez may bring discrimination claims against the School
District on behalf of her minor daughter, C.M.

She, however,

does not have standing to assert personal claims based on

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alleged violations of C.M.’s rights.

See, e.g., D.V. v.

Pennsauken Sch. Dist., 2013 WL 4039022, at *9 (D.N.J. Aug. 7,
2013) (“‘On its face, the statutory language of Title IX applies
only to students and participants in educational programs.’
Even ‘parents of a student whose rights were violated do not
have standing to assert personal claims under Title IX, but do
have standing to assert claims on the student’s behalf.’
Therefore, B.V., as D.V.’s legal guardian, does not have
standing to assert a personal claim under Title IX based on the
alleged violation of D.V.’s rights.”) (internal citations
omitted) (quoting Dipippa v. Union Sch. Dist., 819 F. Supp. 2d
435, 446 (W.D. Pa. 2011)); Sher v. Upper Moreland Twp. Sch.
Dist., 2012 WL 6731260, at *1 (E.D. Pa. Dec. 28, 2012) (holding
that minor’s guardians did not have standing to assert
discrimination claim in their own rights, based upon alleged
discrimination against minor, under Section 504 of the
Rehabilitation Act); Cottrell v. J & R Disc. Liquor Gallery,
Inc., 2009 WL 1085729, at *3-4 (D.N.J. Apr. 21, 2009) (holding
that parents did not have standing to maintain personal ADA
claim based upon alleged discrimination against disabled child
because parents are not disabled, which is a required element of
ADA discrimination claim); D.A. v. Pleasantville Sch. Dist.,
2009 WL 972605, at *8 (D.N.J. Apr. 6, 2009) (dismissing parents’
personal discrimination claims under ADA and Rehabilitation Act

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because parents “do not have standing to pursue their own claims
against the District Defendants arising out of the alleged
discrimination against [child].”).
To the extent Plaintiff Fernandez seeks to pursue any
discrimination claims in her own right under Title II of the
ADA, Section 504 of the Rehabilitation Act, or Title IX of the
Education Amendments, those claims are dismissed with prejudice
for lack of standing.

The Complaint does not explicitly state

that Plaintiff Fernandez seeks to bring discrimination claims on
behalf of C.M., as her minor daughter.
construe pro se pleadings liberally.

The Court, however, must

Accordingly, Plaintiff

Fernandez has standing to bring discrimination claims in this
matter based upon alleged discrimination against C.M. on C.M.’s
behalf only.2

2

Plaintiff Fernandez unsuccessfully pursued a retaliation
claim before the OCR. It is unclear, however, whether
Plaintiffs purport to assert a retaliation claim before this
Court as well. Plaintiffs have not alleged any facts supporting
a causal connection between the School District’s decision to
report Fernandez to DCPP and Fernandez’s decision to file a
complaint with the OCR, as required to state a retaliation claim
under the Rehabilitation Act, the ADA, and Title IX. See, e.g.,
Yan Yan v. Penn State Univ., 529 F. App’x 167, 171 (3d Cir.
2013) (“To prevail on this claim [retaliation in violation of
Title IX], [plaintiff] needed to show that [defendant]
‘retaliated against [her] because [she] complained of sex
discrimination.”) (emphasis in original) (quoting Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005)); Stouch v.
Twp. Of Irvington, 354 F. App’x 660, 667 (3d Cir. 2009)
(“To establish a prima facie case of retaliation under the ADA,
[plaintiff] was required to show: ‘(1) protected employee
activity; (2) adverse action by the employer either after or
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The Court now turns to the substance of Plaintiffs’
allegations and screens such allegations pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
A. Individual Liability
Plaintiffs purport to assert claims under Title II of the
ADA, Section 504 of the Rehabilitation Act, and Title IX of the
Education Amendments against the three Individual Defendants.
These statutes, however, do not provide for individual
liability.

See, e.g., Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246, 257 (2009) (“Title IX reaches institutions and
programs that receive federal funds . . . , but it has
consistently been interpreted as not authorizing suit against
school officials, teachers, and other individuals.”); Bowens v.
Wetzel, --- F. App’x ---, 2017 WL 35712, at *2 (3d Cir. Jan. 4,
2017) (affirming district court’s dismissal of amended

contemporaneous with the employee’s protected activity; and
(3) a causal connection between the employee’s protected
activity and the employer’s adverse action.’”) (quoting Williams
v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759 (3d Cir.
2004)); Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,
267 (3d Cir. 2007) (to establish retaliation claim under
Rehabilitation Act, plaintiff must plead “(1) that they engaged
in a protected activity, (2) that defendants’ retaliatory action
was sufficient to deter a person of ordinary firmness from
exercising his or her rights, and (3) that there was a causal
connection between the protected activity and the retaliatory
action.”). Accordingly, to the extent that Plaintiffs seek to
pursue a retaliation claim before this Court, the retaliation
claim is dismissed without prejudice. Plaintiffs may amend
their complaint to plead the necessary elements of such a claim,
if they so choose.
10

complaint, noting that “the District Court could have properly
followed the holdings of those circuits which have concluded
that there is no individual damages liability under Title II of
the ADA, which provides an additional basis to affirm the
dismissal of this claim.”); 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.”); Emerson v. Thiel
Coll., 296 F.3d 184, 190 (3d Cir. 2002) (suggesting in dicta
that “individuals are not liable under Titles I and II of the
ADA”) (citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280 F.3d 98, 107 (2d Cir. 2001) (holding that Title II does not
permit suits against individuals)); Sarboukh v. Glading, 2015 WL
5255556, at *5 (D.N.J. Sept. 8, 2015) (“‘[I]ndividual liability
is not contemplated under Title II of the Disability Act and
§ 504 of the Rehabilitation Act’ and a claim against an
individual, as opposed to a claim against the public entity
denying its benefits, is not cognizable under the Acts.”)
(quoting Calloway v. Boro of Glassboro Dep’t of Police,
89 F. Supp. 2d 543, 557 (D.N.J. 2000)).
Accordingly, each of Plaintiffs’ claims against the
Individual Defendants, John Bamber, Ida Smith, and Kathleen
Devlin, will be dismissed with prejudice.

11

B. Title IX of the Education Amendments of 1972
Title IX provides, in relevant part, that “[n]o person in
the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance . . . .”

20 U.S.C. § 1681(a).

Plaintiffs do not allege that the School District or any school
officials personally discriminated against C.M.

Rather,

Plaintiffs contend that C.M. was discriminated against by her
classmates on account of her sex and that the Pemberton
Defendants failed to adequately investigate, address, and remedy
the alleged discrimination.
A plaintiff may pursue a claim for “student-on-student
sexual harassment against school districts under Title IX of the
Education Amendments of 1972, as amended, 20 U.S.C. § 1681.

But

the private right of action only lies where the school district
is deliberately indifferent to known acts of sexual harassment
and the harasser is under the school’s disciplinary authority.”
Doe v. Bellefonte Area Sch. Dist., 106 F. App’x 798, 799-800
(3d Cir. 2004) (internal citations omitted) (citing Davis Next
Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
633 (1999)).
In other words, to establish a Title IX discrimination
claim against the Pemberton Defendants based upon alleged sex

12

discrimination against C.M. by her classmates, the Plaintiffs
must plead “(1) that the school board exercised substantial
control over both the harasser and the context in which the
harassment occurred; (2) the school board had ‘actual knowledge’
of the harassment; (3) the school board was ‘deliberately
indifferent’ to the harassment; and (4) the harassment was ‘so
severe, pervasive, and objectively offensive that it [could] be
said to [have] deprive[d] the victims of access to the
educational opportunities or benefits provided by the school.”
Lockhart v. Willingboro High Sch., 170 F. Supp. 3d 722, 736
(D.N.J. 2015) (quoting Davis, 526 U.S. at 645, 650).
“Deliberate indifference occurs when a school district official
‘is advised of a Title IX violation [and] refuses to take
action.’”

D.V., 2013 WL 4039022, at *9 (citing Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)).
Plaintiffs clearly allege that C.M. was harassed by another
student within the Pemberton Township School District on the
basis of her sex while at school and that the Pemberton
Defendants were made aware of the incident.

As the alleged

harasser was another student and the incident occurred on school
premises, the Pemberton Defendants had substantial control over
both the alleged harasser and the context in which the alleged
harassment occurred.

13

Construed liberally in light of Plaintiffs’ pro se status,
Plaintiffs have also adequately pled deliberate indifference on
the part of the Pemberton Defendants.

Plaintiffs allege that

the Pemberton Defendants refused to take proper action after
they became aware of the alleged harassment.

Plaintiffs also

have incorporated the OCR’s determination that the Pemberton
Defendants failed to take appropriate action in light of the
complaints of sexual harassment.
“[I]n the context of student-on-student harassment, damages
are available only where the behavior is so severe, pervasive,
and objectively offensive that it denies its victims the equal
access to education that Title IX is designed to protect.”
Davis, 526 U.S. at 652.

Plaintiffs allege that C.M. has

suffered a knee injury, emotional injuries, and humiliation as a
result of the alleged harassment and the Pemberton Defendants’
failure to adequately respond to the allegations, such that she
is effectively excluded from the educational opportunities and
benefits offered by her school.

The Complaint, however, only

pleads two seemingly isolated instances of alleged harassment or
discrimination, not pervasive conduct.

Moreover, the Complaint

does not state how C.M. has been denied equal access to
educational opportunities or benefits as a result of these two
incidents.

Even liberally construed, the Court finds that

Plaintiffs have not alleged harassment that is “so severe,

14

pervasive, and objectively offensive” such that it has deprived
C.M. access to the educational opportunities or benefits
provided by her school.
As Plaintiffs have failed to adequately plead each of the
elements of a discrimination claim under Title IX, Plaintiffs’
Title IX claim against the Pemberton Defendants will be
dismissed without prejudice.

Nevertheless, Plaintiffs will be

permitted an opportunity to amend their pleadings to remedy this
deficiency, if they so choose.
C. Section 504 of the Rehabilitation Act and
Title II of the Americans with Disabilities Act
Plaintiffs seek relief under both Section 504 of the
Rehabilitation Act and Title II of the ADA.

Both statutes

prohibit discrimination on the basis of disability.

“Because

‘Congress has directed that the ADA be interpreted in a manner
consistent with the Rehabilitation Act,’” this Court will
consider Plaintiffs’ claims under the ADA and the Rehabilitation
Act together.

Weidow v. Scranton Sch. Dist., 460 F. App’x 181,

184 (3d Cir. 2012) (internal modifications omitted, emphasis in
original) (quoting Yeskey v. Com. of Pa. Dep’t of Corr., 118
F.3d 168, 170 (3d Cir. 1997)); accord Chambers ex rel. Chambers
v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189 (3d Cir.
2009) (“Because the same standards govern both the Chambers’

15

[Rehabilitation Act] and ADA claims, we may address both claims
in the same breath.”).
Section 504 of the Rehabilitation Act provides that:
No otherwise qualified individual with a disability
. . . shall, solely by reason of her or his
disability, be excluded from participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity received
Federal financial assistance . . . .
29 U.S.C. § 794(a).

Accordingly, to state a claim under Section

504 of the Rehabilitation Act, a plaintiff must allege that
“(1) the student was disabled; (2) (s)he was ‘otherwise
qualified’ to participate in school activities; (3) the school
district received federal financial assistance; and (4) the
student was excluded from participation in or denied the
benefits of the educational program receiving the funds, or was
subjected to discrimination under the program.”

Blunt v. Lower

Merion Sch. Dist., 767 F.3d 247, 275 (3d Cir. 2014).
Similarly, Title II of the ADA provides that:
[N]o 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.
42 U.S.C § 12132.

To establish a discrimination claim under

Title II of the ADA, Plaintiffs must allege that (1) C.M. is a
qualified individual with a disability; and that (2) C.M. was
excluded from participation in or denied the benefits of the

16

services, programs, or activities of a public entity, or was
subjected to discrimination by any such entity; (3) by reason of
her disability.

Lopez v. Beard, 333 F. App’x 685, 687 n. 1

(3d Cir. 2009).
Moreover, “claims for compensatory damages under § 504 of
the [Rehabilitation Act] and § 202 [Title II] of the ADA also
require a finding of intentional discrimination.”

S.H. ex rel.

Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir.
2013).

“A showing of deliberate indifference may satisfy a

claim for compensatory damages” under Section 504 and Title II.
Id. at 263.

Additionally, “[d]eliberate indifference does not

require a showing of personal ill will or animosity toward the
disabled person.”

Id.

Rather, deliberate indifference can be

established where the defendant has knowledge “that a harm to a
federally protected right is substantially likely” and the
defendant fails to act.

Id. (internal citations omitted).

The Complaint alleges that C.M. is a disabled, but
otherwise, qualified student who suffers from Attention Deficit
Hyperactivity Disorder.

Additionally, the OCR determination,

which is incorporated in Plaintiffs’ pleadings, states that the
Pemberton Defendants are public entities that receive federal
financial assistance.

The Complaint alleges that C.M. was

harassed and/or discriminated against by a fellow student
because of her disability and that the Pemberton Defendants were

17

made aware of this allegation of disability discrimination, but
failed to adequately respond and investigate.
As currently pled, the Complaint baldly states that C.M.
“suffered humiliation from the exclusion of a protected activity
at a public school,” and that C.M. “is aware of the malice other
people who have excluded her from certain activities due to her
disabilities.

However, it is more painful for the plaintiff

[C.M.] to know the defending district staff may have been
similar in excluding her from protected activities at a public
school.”

Compl. p. 24 ¶¶ 17-18.

The Complaint, however, does

not sufficiently allege, even when liberally construed, that
C.M. has been excluded from participation in or denied the
benefits of the services, programs, or activities offered by her
school or that the Pemberton Defendants discriminated against
her on the basis of her disability.
There are no allegations that even indicate that the
Pemberton Defendants failed to adequately respond to Plaintiffs’
complaints because C.M. was disabled.

See Butler v. Mountain

View Sch. Dist., 2013 WL 4520839, at *8 (M.D. Pa. Aug. 26, 2013)
(dismissing Rehabilitation Act claim as “no facts put forth in
the complaint suggest that even if the school did fail to
protect the decedent from bullying, their failure was predicated
upon an intent to single out one particular disabled student.”).
The Court reiterates that the Complaint alleges, at most, two

18

isolated instances of disability harassment or discrimination by
other students and does not state how C.M. has been denied equal
access to educational opportunities or benefits as a result of
these two incidents.

Accordingly, Plaintiffs’ ADA and

Rehabilitation Act claims will be dismissed without prejudice.
Plaintiffs, however, shall be granted an opportunity to amend
the pleadings to remedy the deficiencies identified herein.
D. Punitive Damages
Plaintiffs seek “punitive damages, compensatory damages,
and general damages in the sum of $6,000,000 for past, present,
and future pain and suffering.”

Compl. p. 25 ¶ V.

To the

extent that Plaintiffs seek punitive damages for violations of
the ADA, Section 504, and/or Title IX, those claims must be
dismissed with prejudice.

As a matter of law, punitive damages

may not be awarded for violations of Title II of the ADA,
Section 504 of the Rehabilitation Act, or Title IX of the
Education Amendments.

See, e.g., Barnes v. Gorman, 536 U.S.

181, 189 (2002) (no punitive damages may be awarded in suits
brought under Title II of the ADA or Section 504 of the
Rehabilitation Act); A.W. v. Jersey City Pub. Sch., 486 F.3d
791, 804 (3d Cir. 2007) (punitive damages not available in suit
under Section 504 of the Rehabilitation Act); E.K. v. Massaro,
2013 WL 5539357, at *6 (D.N.J. Oct. 7, 2013) (citing Mercer v.

19

Duke Univ., 50 F. App’x 643, 644 (4th Cir. 2002)) (no punitive
damages under Title IX).
IV.

CONCLUSION
Plaintiffs’ IFP application is granted.

Additionally, for

the foregoing reasons, the Court finds that the Complaint fails
to state a cause of action.

Plaintiffs’ claims under Title IX

of the Education Amendments of 1972, Title II of the ADA, and
Section 504 of the Rehabilitation Act against the Individual
Defendants, John Bamber, Ida Smith, and Kathleen Devlin, are
dismissed with prejudice.

Likewise, Plaintiffs’ demands for

punitive damages for violations of Title IX of the Education
Amendments of 1972, Title II of the ADA, and Section 504 of the
Rehabilitation Act are dismissed with prejudice.

Additionally,

to the extent that Plaintiff Fernandez seeks to assert personal
claims under Title IX of the Education Amendments of 1972, Title
II of the ADA, and Section 504 of the Rehabilitation Act, those
claims are dismissed with prejudice.

Plaintiffs’ remaining

claims against the Pemberton Defendants are dismissed without
prejudice.

Plaintiffs may file an amended complaint, remedying

the deficiencies identified herein, within thirty (30) days, if
they so choose.

An appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

Dated: January 27, 2017

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