FERNANDEZ v. PEMBERTON TOWNSHIP HIGH SCHOOL et al

Filing 9

OPINION. Signed by Judge Renee Marie Bumb on 6/29/2017. (rtm, )

[Docket No. 6, 7]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

C.M. and CATHERINE P.
FERNANDEZ, on behalf of her
minor daughter, C.M.,
Plaintiffs,

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

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

BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiffs C.M., a minor, and her mother, Catherine P.
Fernandez (together, the “Plaintiffs”) originally filed this
civil rights action and an application to proceed in forma
pauperis (“IFP”) on December 19, 2016 [Docket Nos. 1, 1-1].

On

January 27, 2017, the Court granted Plaintiffs’ IFP application
[Docket No. 3].

The Court also screened Plaintiffs’ Complaint,

as required by 28 U.S.C. § 1915(e)(2)(B), and issued an Opinion
on January 27, 2017 [Docket No. 2] (the “January 2017 Opinion”),
dismissing with prejudice all claims by Plaintiffs against
individual defendants John Bamber, Ida Smith, and Kathleen
Devlin (the “Individual Defendants”), and dismissing without
prejudice Plaintiffs’ claims against the Pemberton Township High
School District (the “School District”) and the Pemberton

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Township Board of Education (together with the School District,
the “Pemberton Defendants”).
The Court granted Plaintiffs leave to file an amended
complaint remedying the deficiencies identified in its January
2017 Opinion, within thirty days.

Plaintiffs timely requested

an extension of the time to amend the pleadings, which this
Court granted [Docket Nos. 4, 5].

On March 17, 2017, Plaintiffs

submitted an Amended Complaint [Docket No. 6].

Thereafter, on

March 30, 2017, Plaintiffs filed a submission entitled “Motion
for Punitive Damages” [Docket 7].

The Court now screens

Plaintiffs’ Amended Complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and, for the reasons set forth below, finds that
the Amended Complaint shall proceed.

Additionally, the Court

denies Plaintiffs’ Motion for Punitive Damages.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of this suit are recited in the
January 2017 Opinion [Docket No. 2].

The Court incorporates the

facts as set forth in the January 2017 Opinion by reference, to
the extent those facts have been restated in the Amended
Complaint.

The Court will nevertheless provide an overview of

the relevant factual and procedural background, as well the new
allegations included in the Amended Complaint.
Plaintiff C.M. is a high school student with Attention
Deficit Hyperactivity Disorder (“ADHD”) enrolled at Pemberton

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Township High School.

Am. Compl. p. 5.

Plaintiffs allege that

C.M. suffered a series of physical assaults and sexual and
gender harassment by other students.

Id. pp. 6-8.

These

alleged incidents include a student tripping and injuring C.M.,
students punching C.M. in the stomach, multiple unexplained
sprains, and at least one occurrence of sexual harassment by
another student.

Id. p. 6.

Plaintiffs allege that after

notifying the school officials of these incidents, the Pemberton
Defendants did not properly investigate the allegations,
exhibiting deliberate indifference to the matters.

As a result,

Plaintiffs allege that the Pemberton Defendants violated C.M.’s
civil rights by depriving her of protection from an unsafe
educational environment and the ability to participate in
certain educational activities, such as after-school tutoring.
Id. pp. 17-20.
On or about June 25, 2015, Plaintiff Fernandez instituted a
complaint against the School District with the U.S. Department
of Education Office for Civil Rights (“OCR”), alleging sex and
disability discrimination by the School District against C.M. on
the basis of its failure to adequately respond to Plaintiffs’
complaints.

Id. p. 17.

The OCR considered the allegations in the context of
Section 504 of the Rehabilitation Act of 1973 (“Section 504”),
as amended, 29 U.S.C. § 794, Title II of the Americans with

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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.

The OCR determined, as a preliminary

matter, that the School District failed to adequately respond to
Plaintiffs’ allegations, of which the School District was on
notice, and that the School District’s existing and proposed
anti-bullying and anti-discrimination policies did not comply
with the requirements of Title IX, Section 504, or the ADA.
Determination, Am. Compl. pp. 26, 29-32. 1

OCR

Following the OCR’s

determination, the School District agreed to implement a
resolution agreement to address these concerns and to conduct a
supplemental investigation into the tripping incident, the
results of which were to be communicated to Plaintiff Fernandez.
Id. p. 29.

Plaintiffs contend that the School District has

failed to comply with the resolution agreement.
p. 9.

Am. Compl.

The OCR also noted, “[t]he complainant may have the right

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

OCR Determination, Am. Compl. p. 33.

Plaintiffs commenced the present action against the
Pemberton Defendants and three individuals on December 19, 2016,
alleging violations of Section 504, the ADA, and Title IX.

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The Court, once again, notes that 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 Amended Complaint.
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After reviewing the Complaint, in accordance with 28 U.S.C.
§ 1915(e)(2)(B), on January 27, 2017, the Court dismissed all
claims against the Individual Defendants with prejudice and all
claims against the Pemberton Defendants without prejudice
[Docket Nos. 2, 3].

Plaintiffs amended their pleadings on March

17, 2017 [Docket No. 6].
II.

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

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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.

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
As a preliminary matter, the Court notes that it previously
dismissed with prejudice any discrimination claims under the
ADA, Section 504, and Title IX brought by Plaintiff Fernandez on
her own behalf.

January 2017 Opinion at 8-9.

In the Amended

Complaint, Plaintiff Fernandez brings claims against the
Pemberton Defendants under Title IX, Section 504, and Title II
of the ADA, on behalf of her minor daughter, C.M., only.

As the

Court noted in its January 2017 Opinion, Plaintiff Fernandez may
properly assert discrimination claims against the School
District on behalf of her minor daughter.

See D.V. v.

Pennsauken Sch. Dist., 2013 WL 4039022, at *9 (D.N.J. Aug. 7,

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2013) (noting that parents of a minor student may assert claims
on the student’s behalf).
Additionally, the Court dismissed with prejudice
Plaintiffs’ claims against the Individual Defendants.
2017 Opinion at 10-11.

January

Consistent with the Court’s Opinion and

Order, Plaintiffs do not attempt to reassert claims against the
Individual Defendants in the Amended Complaint.
The Court now turns to the substance of Plaintiffs’
allegations, as set forth in the Amended Complaint, and screens
such allegations, pursuant to 28 U.S.C. § 1915(e)(2)(B).
For the reasons set forth below, the Court finds that Plaintiffs
have sufficiently remedied the deficiencies identified in its
January 2017 Opinion and have stated claims against the
Pemberton Defendants for sex discrimination under Title IX and
disability discrimination under Section 504 and Title II of
the ADA.
A. Title IX of the Education Amendments of 1972
Plaintiffs seek relief under 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 allege that C.M. suffered sex

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discrimination by other students and that the Pemberton
Defendants failed to adequately respond to Plaintiffs’
complaints.
As the Court previously explained, a plaintiff may pursue a
claim for “student-on-student sexual harassment against school
districts under Title IX . . . 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)).
To adequately plead a Title IX claim against the Pemberton
Defendants for sex discrimination against C.M. by her
classmates, Plaintiffs must allege “(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).

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“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)).
As the Court previously found in the January 2017 Opinion,
Plaintiffs have sufficiently alleged the first three elements.
See January 2017 Opinion at 13.

In the Amended Complaint,

Plaintiffs once again allege that that C.M. was harassed by
other students within the School District on the basis of her
sex while at school and that Plaintiff Fernandez notified the
Pemberton Defendants of the incidents.

Additionally, as the

alleged harassment took place on school premises by Pemberton
students, the Pemberton Defendants had substantial control over
the alleged harassers and the context in which the harassment
occurred.

Moreover, liberally construing Plaintiff’s pro se

pleadings, the Court finds that Plaintiffs have adequately
alleged deliberate indifference on the part of the Pemberton
Defendants.

Plaintiffs reassert their allegations that the

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

Furthermore, Plaintiffs

have again incorporated the OCR’s determination that the
Pemberton Defendants failed to take appropriate action in light
of Fernandez’s complaints that C.M. was harassed at school.

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Thus, the Court finds that these elements remain sufficiently
pled in the Amended Complaint.
In screening Plaintiffs’ original Complaint, the Court
determined that Plaintiffs failed to sufficiently allege that
the harassment against C.M. 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.”
Opinion at 14 (quoting Davis, 526 U.S. at 652).

January 2017

The original

Complaint alleged only two isolated incidents of harassment and
did not allege how C.M. had been denied equal access to
educational opportunities or benefits as a result of the alleged
harassment.

Id. pp. 14-15.

In the Amended Complaint, Plaintiffs have sufficiently
remedied these deficiencies.

In addition to the two incidents

of alleged harassment in January 2015 and May 2015, which were
pled in the original Complaint, Plaintiffs also allege that
Plaintiff was “harassed to send nude photos of herself to the
boys in the middle schools [and] to participate in various
sexual acts with the boys in middle school.”
pp. 12-13.

Am. Compl.

Additionally, Plaintiffs now allege that Fernandez

reported multiple complaints of sexual harassment to the
Pemberton Township school officials between 2011 and 2014, but

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that the Pemberton Defendants failed to take any action.

Id. 2

Plaintiffs also explicitly allege that C.M. was deprived of the
right to participate in a “protected school activity as the
process of reporting assaults, harassment of disability, and
sexual harassment.”

Id. p. 14.

In the Amended Complaint,

Plaintiffs allege that C.M. was deprived of the free and
appropriate education to which she is entitled as the Pemberton
Defendants’ conduct deviated from her Individualized Education
Program.

Id. p. 13.

Plaintiffs further allege that the sexual

harassment and the Pemberton Defendants’ deliberate indifference
deprived C.M. of the ability to safely participate in
educational activities, such after-school tutoring.

Id. p. 20.

Construed liberally, this Court finds that the Amended Complaint
sufficiently states a violation of Title IX against the
Pemberton Defendants.

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Plaintiffs set forth these allegations of complaints between
2011 and 2014 “[i]n order to enlighten the courts of past sex
harassment.” Am. Compl. p. 12. While Title IX claims stemming
from events occurring prior to two-years of the filing of this
action are likely barred by the applicable statute of
limitations, these allegations nonetheless are informative to
the Court and, liberally construed, assist in establishing the
severity and pervasiveness of the alleged harassment. See Shine
v. Bayonne Bd. of Educ., 633 F. App’x 820, 823 (3d Cir. 2015)
(Title IX claim “must be brought pursuant to New Jersey’s
two-year statute of limitations for personal injury torts.”)
(citing Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.
2010); Bougher v. Univ. of Pittsburgh, 882 F2d 74, 77-78
(3d Cir. 1989)).
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B. Section 504 of the Rehabilitation Act and
Title II of the Americans with Disabilities Act
Plaintiffs also assert claims under both Section 504 of the
Rehabilitation Act and Title II of the ADA.

The Court, once

again, considers Plaintiffs’ claims under Title II of the ADA
and Section 504 together, as “Congress has directed that the ADA
be interpreted in a manner consistent with the Rehabilitation
Act.”

Weidow v. Scranton Sch. Dist., 460 F. App’x 181, 184 (3d

Cir. 2012) (internal quotations omitted; emphasis in original);
accord Chambers ex rel. Chambers v. Sch. Dist. Of Phila. Bd. of
Educ., 587 F.3d 176, 189 (3d Cir. 2009).
Plaintiffs must allege the following elements to state a
claim under Section 504 of the Rehabilitation Act: “(1) [C.M.]
was disabled; (2) (s)he was ‘otherwise qualified’ to participate
in school activities; (3) the school district received federal
financial assistance; and (4) [C.M.] 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, 274-75 (3d Cir. 2014).
Similarly, to state 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) she was excluded from
participation in or denied the benefits of the services,

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

Lopez v. Bear, 333 F. App’x 685, 687 n. 1 (3d Cir.

2009).
Moreover, a finding of intentional discrimination is
required for claims for compensatory damages under both
Section 504 and Title II of the ADA.

S.H. ex rel. Durrell v.

Lower Merion Sch. Dis., 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.
at 263.

Id.

The Court reiterates that “[d]eliberate indifference

does not require a showing of personal ill will or animosity
toward the disabled person.”

Id.

Rather, deliberate

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

Id. at 263.

In its January 2017 Opinion, the Court found that
Plaintiffs sufficiently pled most of the elements of the
Section 504 and Title II claims.

Plaintiffs pled that C.M.

qualifies under both Section 504 and Title II as disabled as she
suffers from ADHD and that the Pemberton Defendants are public
entities receiving federal funds.

The original Complaint also

alleged harassment against C.M. by other students because of her
disability and that the Pemberton Defendants were aware of

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Fernandez’s allegations of disability discrimination against
C.M., yet demonstrated deliberate indifference in failing to
adequately address the issues.

2017 Opinion at 17-18.

The

Court found, however, that Plaintiffs failed to sufficiently
allege that C.M. was excluded from participation in or denied
the benefits of services, programs, or activities offered by her
school or that the Pemberton Defendants discriminated against
her because of her disability.

Id. p. 18.

In the Amended Complaint, Plaintiffs now allege that the
Pemberton Defendants are well-aware of their obligations under
federal laws prohibiting disability discrimination, as evidenced
by their participation in federal funding and the provision of
special education programs.

Additionally, Plaintiffs allege

that the Pemberton Defendants knew that Fernandez reported
unlawful disability discrimination and yet they did not act.
Am. Compl. p. 17.

Plaintiffs claim that school officials

“lacked motivation” to properly address C.M.’s disability
harassment allegations because of her disability, arguing that
“if another type [of] student, such [as] an honor student []
made a similar allegation” to school officials, “[i]t would have
been cause for the official[s] to take proper action.”

Id.

Further, Plaintiffs claim that this lack of motivation and
inaction constitute a denial of services offered by the
Pemberton Defendants due to C.M.’s disability, and that “[t]he

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incidents are not isolated and the discrimination is noted
throughout the districts [sic] grade school and middle school.”
Id. p. 18.
The Court has reviewed the Amended Complaint and, liberally
construing Plaintiffs’ pro se allegations and accepting all
well-pled allegations as true, as this Court must, the Court
finds that Plaintiffs’ Amended Complaint sufficiently remedies
the deficiencies identified in the January 2017 Opinion and
states a claim under Title II of the ADA and Section 504 against
the Pemberton Defendants.
C. Motion for Punitive Damages
On March 30, 2017, the Court received a submission by
Plaintiffs captioned “Motion for Punitive Damages”, requesting
an award of punitive damages under N.J.S.A. 2A:15-5.12 [Docket
No. 7].

The submission states that “Plaintiff C.M. believes

NJSA 2A:15-5.12 is consistent with Title IX and Title II, ADA,
Section 504” and requests “the maximum penalty allowed under law
for punitive damages.”

Id.

In its January 2017 Opinion, the Court dismissed with
prejudice Plaintiffs’ requests for punitive damages for
violations of the ADA, Section 504, and Title IX.
Opinion at 19-20.

January 2017

The Court explained that, as a matter of law,

a plaintiff may not recover punitive damages in connection with
violations of Title II of the ADA, Section 504, or Title IX.

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Id.

The Court reiterates its holding here.

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.

Barnes v. Gorman, 536 U.S. 181, 189

(2002) (holding that punitive damages may not be awarded in
private suits brought under Title II of the ADA and Section 504
of the Rehabilitation Act); A.W. v. Jersey City Pub. Sch.,
486 F.3d 791, 804 (3d Cir. 2007) (“Punitive damages are not
available” for violation of Section 504); E.K. v. Massaro,
2013 WL 5539357, at *6 (D.N.J. Oct. 7, 2013) (citing Mercer v.
Duke Univ., 50 F. App’x 643, 644 (5th Cir. 2002)) (holding that
punitive damages are unavailable under Title IX).

Moreover,

Plaintiffs’ reliance on N.J.S.A. 2A:15-5.12is misplaced.
N.J.S.A. 2A:15-5.12, a state statute, cannot serve as the basis
for a punitive damages award for violations of federal civil
rights laws.

Accordingly, Plaintiffs’ Motion for Punitive

Damages is denied.
IV.

CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs’

allegations survive a preliminary screening with regard to the
following causes of action against the Pemberton Defendants:
sex discrimination in violation of Title IX and disability
discrimination under Section 504 of the Rehabilitation Act and
Title II of the ADA.

Accordingly the Court will direct the

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Clerk of the Court to reopen the case, file the Complaint, and
issue summons.

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

Dated: June 29, 2017

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