COLOMBO v. THE BOARD OF EDUCATION FOR THE CLIFTON SCHOOL DISTRICT et al

Filing 132

OPINION. Signed by Judge Claire C. Cecchi on 10/27/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAWN COLOMBO,
Plaintiff,

THE BOARD OF EDUCATION FOR THE CLIFTON
SCHOOL DISTRICT, ET AL.,

Civil Action No.: 2:l1-cv-00785
Consolidated with:
Civil Action No.: 2:12-cv-07132

OPINION

Defendants.
N.C. Minor, Individually, by and through her parent and
Guardian Ad Litem, D.C., and BRANDON COLOMBO,
Plaintiffs,
V.

THE BOARD OF EDUCATION FOR THE CLIFTON
SCHOOL DISTRICT, ET AL.,
Defendants.
CECCHI, District Judge.
I.

INTRODUCTION
This matter comes before the Court upon the motions of Defendants Jimmie Warren

(“Warren”), and the Clifton Board of Education, Members of the Clifton Board of Education,
Clifton High School, Richard Tardalo, Antony Presley, Pasquale Orsini, John Lopez, Peter Cumba,
and Pat DeLotto (collectively, the “Board Defendants,”t and collectively with Warren, the
“Defendants”) to dismiss the Amended Complaint of Plaintiffs N.C. and Brandon Colombo

See ECF No. 129 (clarifying for the Court that the following defendants filed the motion to
dismiss at ECF No. 104: “(1) Clifton Board of Education; (2) Members of the Clifton Board of
Education; (3) Clifton High School; (4) Richard Tardalo; (5) Antony Presley; (6) Pasquale Orsini;
(7) John Lopez; (8) Peter Cumba; and (9) Pat DeLotto.”

(“Brandon,” and collectively with N.C., “Plaintiffs”).2 (ECF Nos. 103, 104). The motions are
opposed by Plaintiffs. (ECF Nos. 111-1, 111-5). The motions are decided without oral argument
pursuant to Rule 78(b) of the federal Rules of Civil Procedure. For the reasons set forth below,
Defendants’ motions to dismiss are granted.
II.

BACKGROUND
In the fall of 2008, Brandon began his freshman year at Clifton High School. (ECF No. 91

¶ 20).

“Brandon was a special education student with an Individualized Education Program

(“IEP”),” who was repeating his freshman year for the second time. (Id.

¶ 38).

Shortly after

beginning school, Brandon “experienced disciplinary problems and was suspended.” (Id.

¶ 20).

Upon receiving notice of Brandon’s suspension, his mother (“Colombo”) contacted Warren, the
principal of Clifton High School, (id.
following day. (Id.

¶ 21),

and set up an appointment to meet with Warren the

¶ 22).

Plaintiffs allege that during Warren and Colombo’s appointment, “Warren agreed to
withdraw Brandon’s suspension” and thereafter “engaged in a continuing pattern of extremely
inappropriate, unwelcome, harassing and sexually suggestive communications with [Colombo],”
including “inappropriate sexual touching.”

(Id.

flJ 23-24).

Plaintiffs contend that although

Colombo “sought to legitimately discuss her son’s academic performance, his behavior issues at
the High School, and his overall social education well-being in school,” Warren’s actions
persisted. (Id.

¶ 25).

Plaintiffs maintain that when Colombo refused Warren’s requests, such as

asking Colombo to bring Warren food or coffee, “Warren stated to [Colombo] not to call [him]

2

The Court notes that Defendants also filed separate motions to dismiss Plaintiffs’ mother’s
claims, which were granted in part and denied in part on October 31, 2016. (ECF No. 90).
2

the next time Brandon [got] in trouble.” (Id.

¶ 26).

Towards the end of the school year, Warren contacted Colombo to inform her that Brandon
had been promoted from freshman to sophomore. (Id.

¶ 27).

Warren allegedly told Colombo “that

she owed him because no one within the District wanted to promote Brandon to a sophomore.”
(Id.). Plaintiffs further allege that “Warren deliberately changed some of Brandon’s grades.. to
.

misleadingly demonstrate that Brandon had successfully completed his [f]reshman academic
requirements.” (Id.

¶ 28).

In return, and to ensure Brandon would face no disciplinary problems

in the future, Warren allegedly told Colombo to “perform a sexual act upon him.” (Id.

¶ 29).

Despite Colombo’s refusal, Warren’s actions purportedly continued, including “insisting
on having a meeting to discuss a disciplinary action against Brandon in a hotel room,”
“inappropriate touching,” “requests for several sexual favors,” and “exposing himself to
[ColomboJ.” (Id.

¶ 30).

Plaintiffs allege that on one occasion, Warren gave Colombo “a Louis

Vuitton purse worth approximately $1,000,” because Warren “felt bad about what he had done”
and did not want Colombo to tell anyone. (Id.

¶ 31).

According to Plaintiffs, “Members of the Board of Education, administrators within the
District.. and other agents and employees of Defendants were aware of Warren’s activities and
.

took no action in response.” (Id,

¶ 32).

Colombo allegedly: (1) called the superintendent of Clifton

High School to discuss Warren’s conduct, but her calls went unreturned; and (2) informed the dean
of students about Warren’s conduct, but the dean of students took no action. (Id.

¶J 32-33).

In the fall of 2010, Plaintiffs maintain that “Warren alleged that Brandon was under the
influence of alcohol and/or drugs and insisted that he be sent for testing.” (Id.

¶ 41).

Plaintiffs

further allege that Warren demanded “Brandon be placed in an in-patient program” but the “center
refused and Brandon tested negative for drugs and alcohol.” (Id). Shortly thereafter, Plaintiffs
3

contend that Colombo, in preparation of filing a criminal complaint against Warren, told Plaintiffs
about Warren’s misconduct for the first time. (Id.

¶ 42).

Upon the criminal complaint becoming public, Plaintiffs allege that they “endured
significant harassment, intimidation[,J and bullying.” (Id.

¶ 43).

“Students would constantly

approach Brandon to ask him questions about the incidents” and “made constant confrontational
comments to Brandon as a result of the allegations.” (Id.

¶J 44-45).

“Brandon no longer felt

comfortable leaving his classroom,” and was allegedly at no time contacted by Clifton High School
“to help him navigate through this difficult period in school,” (Id.
reporting of the harassment to various administrators. (Id.

¶ 50).

¶J 46-48), despite

Colombo’s

Ultimately, Brandon completed

“his high school education at the Board of Education in Clifton (“Home Education”).” (Id.
Plaintiffs allege that N.C. experienced the same hostility at school. (Id.

¶ 51).

¶ 49).

“N.C. was

consistently approached by various students and teachers and treated in a hostile manner. The
students would consistently make negative comments to N.C. about her mother and negative
comments about N.C.” (Id.

¶ 52).

Plaintiffs further contend that Colombo’s “pleas for help to the

administration went unanswered” and the “school took little or no action to address the
harassment.” (Id.

¶ 53, 56).

“As a result, N.C. began to have anxiety and panic attacks” and “has

been to the hospital over ten (10) times as a result of the panic attacks.” (Id.

¶ 55).

According to Plaintiffs, as “a direct result of the hostility N.C. faced at school,” she “missed
a number of school days during her spring semester.” (Id.

¶ 57).

N.C.’s request to make up her

missed exams was allegedly denied, forcing N.C. to repeat her freshman year. (Id.

¶J 57-58).

Plaintiffs contend that subsequently, N.C. was “pushed’ through school,” completing “her
sophomore year, her junior year[,] and senior year in one (1) school year.” (Id.

¶

59). Despite

failing her proficiency examination on two occasions, N.C. passed on her third try and “received
4

her high school diploma.” (Id.

¶f 60-61).

On November 1, 2016, Plaintiffs filed their Amended Complaint in this Court. (Id.). On
December 15, 2016, Warren and the Board Defendants filed separate Motions to Dismiss. (ECF
Nos. 103, 104). Plaintiffs and Defendants subsequently filed a number of submissions, which have
been duly considered by the Court.
III.

LEGAL STANDARD
A.

Rule 12(b)(1)

Courts must grant a motion to dismiss under federal Rule of Civil Procedure 12(b)(l) if
the court determines that it lacks subject-matter jurisdiction over a claim. See In re Schering
Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012).
“Generally, where a defendant moves to dismiss under Rule 1 2(b)( 1) for lack of subject-matter
jurisdiction, the plaintiff bears the burden of proving by a preponderance of the evidence that the
Court has subject matterjurisdiction.” The Connelly Firm, P.C. v. US. Dep ‘t ofthe Treasury, No.
15-2695, 2016 WI 1559299, at *2 (D.N.J. Apr. 18, 2016) (citing Gould Elecs. Inc. v. United
States, 220 f.3d 169, 178 (3d Cir. 2000)).
The first step in evaluating a 12(b)(1) motion is determining whether the 12(b)(1) motion
presents a facial attack or a factual attack. See Constitution Party ofPa. v. Aichele, 757 F.3d 347,
357-58 (3d Cir. 2014). for facial attacks, “the court must consider the allegations of the complaint
as true.” Mortensen v. First Fed. Say, & Loan Ass ‘n, 549 f.2d 884, 891 (3d Cir. 1977). For factual
attacks, however “the trial court is free to weigh the evidence and satisfy itself as to the existence
of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations
[and] the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Id.

5

B.

Rule 12(b)(6)

for a complaint to survive dismissal pursuant to Fed. R. Civ. P. 12(b)(6), it “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 AtL Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). “Factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. Furthermore, “[a] pleading that offers ‘labels and conclusions’

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.

.

will not do. Nor

does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.”
Iqbal, 556 U.S. at 678 (citations omitted).
IV.

DISCUSSION
A.

Fourteenth Amendment Equal Protection
1.

Count One

Count One of Plaintiffs’ Amended Complaint alleges that Defendants violated Plaintiffs’
rights to equal protection under the law as guaranteed by the Fourteenth Amendment, which
provides that “[nb state shall.

.

.

deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV,

§

1. To bring a successful claim under 42 U.S.C.

§

1983 for

a denial of equal protection, Plaintiffs “must demonstrate that [they] received different treatment
than other similarly situated persons and that the disparate treatment was based on [their] protected
class status.” Kasper v. Cty, of Bucks, 514 F. App’x 210, 214 (3d Cir. 2013) (citing Andrews v.
City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)). “Thus, to survive a motion to dismiss, the
complaint must allege facts that would establish that the plaintiff is ‘(1) a member of a protected
6

class; (2) similarly situated to members of an unprotected class; and (3) treated differently from
members of the unprotected class.” Raven v. City ofPhila., No. 15-4146, 2016 WL 320574, at
*6 (E.D. Pa. Jan. 26, 2016) (citations omitted).
Defendants argue that the Amended Complaint does not allege any facts that would support
a claim for

§

1983 liability based on a violation of the equal protection clause. (ECF Nos. 103-2

at 11-14, 104-1 at 9-1 1). The Amended Complaint alleges that “Plaintiffs were afforded a lower
level of protection as opposed to other students at Clifton High School as a result of N.C.’s gender,
and as a result of Brandon’s disabilities.” (ECF No. 91

¶ 66).

Although the Amended Complaint

identifies N.C.’s gender and Brandon’s disability as their purported protected classes, the
Amended Complaint identifies no similarly situated members of unprotected classes (i.e., similarly
situated male students and non-disabled students). further, the Amended Complaint does not
identify how female students or disabled students were treated differently from similarly situated
male students or non-disabled students based on being members of those classes.
Although Plaintiffs argue that on a motion to dismiss, their contention that “Plaintiffs
received a lower level of protection that was motivated by disability and gender” suffices, (ECF
Nos. 111-1 at 11, 111-5 at 7), this argument fails. See D ‘Altllio v. Dover Twp., No. 06-1931, 2007
WL 2845073, at *8 (M.D. Pa. Sept. 26, 2007) (“To avoid dismissal, a plaintiff must allege both
protected-class status and differential treatment of similarly situated non-class members.” (citing
Keenan v. City ofPhila., 983 F.2d 459, 465 (3d Cir. 1992)); see also id. (“Mere harassment based
on protected-class status without identification of similarly situated individuals outside the class
will not support an equal protection violation.” (citing Hudson v. Coxon, 149 F. App’x 118, 121
(3d Cir. 2005)).
When alleging the existence of individuals outside the protected class, a plaintiff
7

“cannot use allegations
that amount to nothing more than ‘conclusory,
boilerplate language’ to show that he may be entitled to relief,” and “bald
assertion[s] that other[s]
were treated in a dissimilar manner” will not survive
dismissal.
.

.

.

.

.

.

Id. (alterations in original) (quoting Young v. New Sewickley Twp., 160 F. App’x 263, 266 (3d Cir.
2005)). As such, Plaintiffs have not pled facts sufficient to allege a protected-class equal protection
violation, and their claim will be dismissed.
2.

Count Two

Count Two of Plaintiffs’ Amended Complaint also alleges that Defendants violated
Plaintiffs’ rights to equal protection under the law as guaranteed by the Fourteenth Amendment.
Unlike Count One, however, Count Two does not allege Plaintiffs were treated differently from
members of unprotected classes, but rather argues:
The above enumerated actions by Defendants and actions which Defendants have
stated they intend to engage in violate the plaintiffs’ right to be free from
intimidation by other students, the right to be free from physical intrusions as well
as psychological attacks that cause students to question their self-worth and their
rightful place in society.
(ECF No. 91

¶ 75).

On the face of Plaintiffs’ Amended Complaint, it is unclear how this contention

gives rise to an equal protection violation. Read liberally, however, the Court construes Plaintiffs’
contention as a “class of one” equal protection claim.
“An Equal Protection claim can in some circumstances be sustained if the plaintiff ‘claims
that she has been irrationally singled out as a so-called “class of one.” Allen v. Baylor, No. 134386, 2014 WL 146478$, at *3 (D.N.J. Apr. 15, 2014) (quoting Engquist v. Or. Dep’t ofAgric.,
553 U.S. 591, 601 (2008)). “To state a ‘class-of-one’ equal protection claim, a plaintiff needs to
‘allege[] that he has been intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.” Turner v. Doe, No. 15-5942, 2015 WL
5455669, at *3 (D.N.J. Sept. 15, 2015) (alteration in original) (quoting Viii. of Willowbrook v.
8

Olech, 528 U.S. 562, 564 (2000)). “[A]t the very least, to state a claim under that theory, a plaintiff
must allege that (1) the defendant treated him differently from others similarly situated, (2) the
defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.”
Id. (alteration in original) (citations omitted).
Here, Plaintiffs do not allege the existence of any similarly situated students. As such,
Plaintiffs have not pled facts sufficient to allege a “class of one” equal protection claim. See id.
(finding that plaintiff failed to state a claim upon which relief may be granted when plaintiff did
not allege the existence of similarly situated individuals); Mann v. Brenner, 375 F. App’x 232,
238-39 (3d Cir. 2010) (noting that although plaintiffs are not required to “identify in the complaint
specific instances where others have been treated differently,” without any allegation regarding
other similarly situated individuals, plaintiffs “class of one” equal protection claim failed to state
a claim (citations omitted)); see also Ragland v. Lanigan, No. 14-045 8, 2014 WL 253492$, at *5
(D.N.J. June 4, 2014) (“Plaintiffs sole allegation in the complaint with respect to this claim is that
he was treated differently than similarly situated [individuals]. This amounts to nothing more than
a thread-bare recital of the first element of stating a ‘class-of-one’ equal protection claim without
any further factual allegations.

This is insufficient to state an equal protection claim.”).

Accordingly, Plaintiffs’ Fourteenth Amendment equal protection claim is dismissed.
B.

Due Process Education
-

1.

Substantive Due Process

Count Three of Plaintiffs’ Amended Complaint alleges that Plaintiffs “were deprived of a
property right to a free public education.” (ECF No. 91

¶ $7).

To the extent that Plaintiffs argue

that such deprivation constitutes a substantive due process violation, their argument is without
merit.
9

To prevail on a substantive due process claim challenging a state actor’s conduct,
“a plaintiff must establish as a threshold matter that he has a protected property
interest to which the fourteenth Amendment’s due process protection applies.”
Whether a property interest is protected for purposes of substantive due process is
a question that is not answered by reference to state law. Rather, for a property
interest to be protected for purposes of substantive due process, it must be
“fundamental” under the United States Constitution.
Hilt v. Borough of Kutztown, 455 f.3d 225, 234 n.12 (3d Cir. 2006) (citations omitted). “If the
interest is not ‘fundamental’

..

.

the governmental action is entirely outside the ambit of substantive

process and will be upheld so long as the state satisfies the requirements of procedural due
process.” Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir. 2000). The Third Circuit has
explicitly held that education is not a fundamental right entitled to substantive due process
protection. See Bowers v. Nat ‘1 Collegiate Athletic Ass ‘11, 475 f.3d 524, 553 (3d Cir. 2007) (citing
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)). Thus, Plaintiffs’ claim that
their substantive due process rights were violated fails.3
2.

Procedural Due Process

Plaintiffs further argue that “Plaintiffs were deprived of [the property right to a free public
education] without due process.” (ECF No. 91

¶ 8$).

Construing Plaintiffs’ Amended Complaint

liberally, Plaintiffs seem to raise a procedural due process argument.
To state a claim under

§

1983 for deprivation of procedural due process rights, a

Although the Court recognizes that courts have applied rational basis review to substantive due
process claims related to public education rights, see, e.g., MG. v. Crisfield, 547 F. Supp. 2d 399,
408 (D.N.J. 200$); Bell v. Pennsbury Sch. Dist., No. 09-5967, 2011 WL 292241, at *5 (E.D. Pa.
Jan. 31, 2011), the Third Circuit holds that “when a plaintiff challenges the validity of a legislative
act, substantive due process typically demands that the act be rationally related to some legitimate
government purpose. In contrast, when a plaintiff challenges a non-legislative state action.
[i]f the interest is not ‘fundamental’
the government action is entirely outside the ambit of
substantive due process and will be upheld so long as the state satisfies the requirements of
procedural due process.” Nicholas v. Pa. State Univ., 227 f.3d 133, 142 (3d Cir. 2000) (emphasis
added). Because the instant case does not involve a legislative act, the Court finds application of
rational basis review unwarranted. See id.
10
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.

.

plaintiff must allege that (1) he was deprived of an individual interest that is
encompassed within the fourteenth Amendment’s protection of “life, liberty, or
property,” and (2) the procedures available to him did not provide “due process of
law.”
Hill, 455 F.3d at 233-34 (citations omitted). “[I]t is well-settled that state-created property interests
are entitled to protection under the procedural component of the Due Process Clause.”
Nicholas, 227 f.3d at 140.
In New Jersey, the right to a free, public education is recognized as a legitimate property
interest. See MG. v. Crisfield, 547 F. Supp. 2d 399, 408 (D.N.J. 2008) (“New Jersey law clearly
provides

.

.

.

the right to a free public education.”). As such, Plaintiffs have sufficiently alleged

the first element of a procedural due process claim. (See ECF No. 91 at

¶J 84,

87-88).

As to the second requirement:
In order to state a claim for failure to provide due process, a plaintiff must have
taken advantage of the processes that are available to him or her, unless those
processes are unavailable or patently inadequate. “[Al state cannot be held to have
violated due process requirements when it has made procedural protection available
and the plaintiff has simply refused to avail himself of them.” A due process
violation “is not complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process.” If there is a process on the books
that appears to provide due process, the plaintiff cannot skip that process and use
the federal courts as a means to get back what he wants.
Alvin v. Suzuki, 227 f.3d 107, 116 (3d Cir. 2000) (alteration in original) (citations omitted). Here,
Plaintiffs have not provided any information in their Amended Complaint about what processes
were available to them, whether they took advantage of those processes, or why those processes
were unavailable or patently inadequate.4 Rather, Plaintiffs argue that they “were deprived of their
right to a ‘free public education’ without any proceedings at all. No hearing(s) was/were held or

Conversely, the Board Defendants note that Plaintiffs could have “fil[ed] a petition with the N.J.
Department of Education as required by N.J.A.C. 6A:3-l.1 et seq.” (ECF No. 104 at 23).
11

offered to the Plaintiffs.” (ECF Nos. 111-1 at 21, 111-5 at 18).

Without more, Plaintiffs’

procedural due process claim fails to state a claim upon which relief may be granted.
C.

Due Process
1.

—

Intrusions on Personal Activity

Substantive Due Process

Plaintiffs allege in Count Four of their Amended Complaint:
Plaintiffs had a right to be free from unjustified intrusions on personal activity, such
as the pervasive harassment Plaintiffs suffered from both staff and students. This
pervasive harassment was a direct and logical result of Principal Warren’s actions
against [Colombo]. The Defendants created this danger by hiring Principal Warren
and ignoring complaints of his unprofessional behavior, and further, Defendants
had a special relationship with the Plaintiffs, and a duty to protect them as their
educators. The above enumerated actions by Defendants are in violation of
Plaintiffs’ substantive due process rights as Warren’s conduct shocks the
conscience or otherwise offends judicial notions of fairness.
(ECF No. 91

¶J 98-101).

“The Third Circuit has recognized that ‘[i]ndividuals have a constitutional liberty interest
in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth
Amendment.” Bridges ex rel. D.B. v. Scranton $ch. Dist., 66 F. Supp. 3d 570, 580 (M.D. Pa.
2014) (alteration in original) (citations omitted), aff’d, 644 F. App’x 172 (3d Cir. 2016). Plaintiffs
contend that this liberty interest was violated as a result of “pervasive harassment.
staff and students.” (ECF No. 91

¶ 98).

.

.

from both

Because Plaintiffs’ claims of harassment against staff and

students implicate different issues, each will be addressed in turn.
a)

Staff

“The Third Circuit has developed a four-part test for analyzing claims of physical abuse
against a school official.” L.H. v. Pittston Area $ch. Dist., 130 F. Supp. 3d 918, 929 (M.D. Pa.
2015), aff’d, 666 F. App’x 213 (3d Cir. 2016). Here, Plaintiffs have only alleged verbal abuse by
Clifton High School staff. (ECF No. 91

¶ 98).

“However, as with claims of physical abuse, claims
12

involving ‘[n]on-physical types of harassment, including verbal abuse, require the same “shocks
the conscience” analysis.”5 L.H, 130 F. Supp. 3d at 929 (citations omitted). “Typically, courts
considering claims of verbal abuse by state actors have found that such conduct alone was not
severe enough to rise to the level of a substantive due process violation.” Id. (citing cases).
Here, Plaintiffs allege that “teachers.
“teachers

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.

.

.

.

treat[ed Brandon] differently and alienat[ed] him,”

acted hostile toward N.C.,” and “N.C. was consistently approached by various

teachers and treated in a hostile manner.” (ECF No. 91

¶J 47, 51-52).

Under the standard set forth

above, the Court cannot find that Plaintiffs sufficiently alleged conduct which rises to the level of
“conscience-shocking” to support a substantive due process claim. See LH, 130 F. Supp. 3d at
929 (citing cases that found plaintiffs failed to state substantive due process claims where teachers
called students prostitutes, bimbos, fatsos, retarded, and stupid). As such, Plaintiffs have failed to
state a claim upon which relief may be granted.
b)

Students

Regarding the conduct of Plaintiffs’ classmates, “[g]enerally, the Due Process Clause does
not impose an affirmative duty upon the state to protect citizens from the acts of private
individuals.” Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir. 2006). The Third Circuit, however,
has “explicitly recognized two exceptions to this general rule. First, the state has a duty to protect
or care for individuals when a ‘special relationship’ exists. Second, the state has a duty when a
‘state-created danger’ is involved.” Id. at 304. Plaintiffs argue that both of these exceptions apply.

Although Plaintiffs’ Amended Complaint alleges Warren’s conduct shocks the conscience, the
relevant inquiry before the Court is whether the “pervasive harassment Plaintiffs suffered” shocks
the conscience. See L.H v. Pittston Area $ch. Dist., 130 F. Supp. 3d 918, 929 (M.D. Pa. 2015),
aff’d, 666 F. App’x 213 (3d Cir. 2016).
13

(ECF No.91

¶ 100).
(1)

Special Relationship

“[P]ublic schools, as a general matter, do not have a constitutional duty to protect students
from private actors.” Morrow v. Balaski, 719 f.3d 160, 170 (3d Cir. 2013). Nonetheless, a public
school may have a duty to protect students from private actors if a special relationship exists
between them. See Sanford, 456 F.3d at 304.
[A] special relationship [may ariseJ between a particular school and particular
students under certain unique and narrow circumstances. However, any such
circumstances must be so significant as to forge a different kind of relationship
between a student and a school than that which is inherent in the discretion afforded
school administrators as part of the school’s traditional in toco parentis authority
or compulsory attendance laws.
Morrow, 719 f.3d at 171. Here, Plaintiffs allege that “Defendants had a special relationship with
the Plaintiffs, and a duty to protect them as their educators.” (ECF No. 91

¶ 100).

Plaintiffs point

to no facts as to how Defendants’ relationship with Plaintiffs differed from the inherent
relationship between public schools and their students, and therefore Plaintiffs have failed to
sufficiently plead that a special relationship existed. See Morrow, 719 F.3d at 171-72 (“The
circumstances

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.

.

under the facts alleged here are not ‘certain narrow’ circumstances at all.

Instead, they are endemic in the relationship between public schools and their students.

.

.

.

The

fact that ‘the specific threat at issue in this case’ was ‘a violent bully subject to two restraining
orders,’ does not necessarily give rise to a special relationship.” (citations omitted)); Bridges, 66
F. Supp. 3d at 582 (holding that school district and elementary school student did not have a special
relationship, so as to give rise to constitutional duty under Due Process Clause to protect student
from being bullied by other students).

14

(2)

State-Created Danger

Plaintiffs next argue that Defendants had a duty to protect Plaintiffs because Defendants
created a situation that was dangerous to Plaintiffs. (ECF No. 91

¶ 100).

The Third Circuit has

“recognized that a state actor may be held liable under the ‘state-created danger’ doctrine for
creating a danger to an individual in certain circumstances.” Henry v. City ofErie, 72$ F.3d 275,
281 (3d Cir. 2013). Under this theory, “liability may attach where the state acts to create or
enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to
substantive due process.” Morrow, 719 F.3d at 177. To prevail on this theory, Plaintiffs must
show:
1) [T]he harm ultimately caused was foreseeable and fairly direct; 2) a state actor
acted with a degree of culpability that shocks the conscience; 3) a relationship
between the state and the plaintiff existed such that the plaintiff was a foreseeable
victim of the defendant’s acts, or a member of a discrete class of persons subjected
to the potential harm brought about by the state’s actions, as opposed to a member
of the public in general; and 4) a state actor affirmatively used his or her authority
in a way that created a danger to the citizen or that rendered the citizen more
vulnerable to danger than had the state not acted at all.
Id. Here, Plaintiffs argue that the “pervasive harassment [that they sufferedJ was a direct and
logical result of Principal Warren’s actions against [ColomboJ” and that the “Defendants created
this danger by hiring Principal Warren.”6 (ECF No. 91

¶J 99-100).

Plaintiffs further state “[u]pon

information and belief, the [Board D]efendants knew that Jimmie Warren had been accused of
sexual harassment in the past, while in a position of authority at another school in the Clifton
District.” (Id.

¶ 37).

The Court must first consider whether the harm Plaintiffs suffered was

foreseeable.

6

Although Plaintiffs do not say so explicitly, it is clear to the Court that this allegation applies to
the Board Defendants, and not to Warren. As such, this argument will only be considered as to
the Board Defendants.
15

Foreseeability exists if there is an awareness on the part of the state actors that rises
to [the] level of actual knowledge or “an awareness of risk that is sufficiently
concrete to put the actors on notice of the harm.” Put another way, at the time of
its state action, the [Defendants] must have had sufficient reason to be aware of the
risk that the harm might occur.
Reichert v. Pathway $ch., 935 F. Supp. 2d 80$, 81$ (ED. Pa. 2013) (citations omitted). Indeed,
ifthe Board Defendants were informed of Warren’s alleged history of sexual harassment, the Court
would likely find that the Board Defendants had an awareness of the risk that by hiring Warren,
students may fall victim to sexual harassment at the hands of Warren.
Here, however, it was Colombo, Plaintiffs’ mother, not Plaintiffs, that purportedly suffered
sexual harassment from Warren. Plaintiffs, conversely, suffered teasing and bullying from other
students resulting from the following series of events: (1) Warren was hired as principal of Clifton
High School; (2) Brandon suffered disciplinary problems, resulting in an appointment between
Warren and Colombo; (3) thereafter, Warren allegedly engaged in a pattern of sexual misconduct
towards Colombo; (4) Colombo reported Warren’s conduct to the police; and (5) after an
investigation and media coverage, students at Clifton High School learned of Warren’s purported
misconduct against Colombo. (ECF No. 91).
The Court finds that the teasing and bullying Plaintiffs suffered was too attenuated to
constitute a foreseeable or fairly direct consequence of hiring Warren. See Graham v. Huevel, No.
10-1268, 2011 WL 1256607, at *5 (D.N.J. Mar. 28, 2011) (finding plaintiff could prove no set of
facts to establish foreseeability when defendant’s conduct was “too attenuated to have caused”
plaintiffs harm); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 909 (3d Cir. 1997)
(holding that “defendants, as a matter of law, could not have foreseen.

.

.

the tragic harm [because

it] was too attenuated from defendants’ actions to support liability”). Accordingly, Plaintiffs’
contention fails.
16

Plaintiffs further allege that the Board “Defendants created this danger by
complaints of [Warren’s] unprofessional behavior.” (ECF No. 91

¶

.

.

.

ignoring

100). Without acknowledging

whether the first three elements enumerated above have been met:
The Third Circuit has made clear that under the fourth element, liability “is
predicated upon the states’ affirmative acts which work to the plaintiffs’ detriments
in terms of exposure to danger. It is misuse of state authority, rather than a failure
to use it, that can violate the Due Process Clause.”
Bridges, 66. F. Supp. 3d at 583 (citations omitted). “Accordingly, to establish the fourth element,
Plaintiffs must identify ‘an affirmative action, rather than inaction or omission.” Id. (citations
omitted). Because ignoring complaints of Warren’s unprofessional behavior constitutes passive
inaction, it is not sufficient to state a cause of action under the state-created danger exception. See
Morrow, 719 F.3d at 179; Bridges, 66 F. Supp. 3d at 584. As such, Plaintiffs’ claim that their
substantive due process rights were violated is dismissed.
2.

Procedural Due Process

Although Plaintiffs argue in Count four of their Amended Complaint that the “above
enumerated actions, and the Defendants’ failure to provide the Plaintiffs with a hearing, are in
violation of Plaintiffs’ procedural due process rights,” (ECF No. 91

¶

102), only the substantive

component of the Due Process Clause is at issue here. See Bridges, 66 F. Supp. 3d at 580
(explaining that where “Plaintiffs assert[ed] that [D.B.J was deprived of his liberty interest and
right to bodily integrity as a result of student-on-student bullying in first grade and teacher-on
student bullying in second grade,” “[o]nly the substantive component of the Due Process Clause
[waYs at issue”). Indeed, Plaintiffs clarify in their briefing that their procedural due process claim
relates to Plaintiffs’ purported property right to a free, public education, (ECF Nos. ill-i at 21,
111-5 at 18), as discussed in Section W.B.2, supra. As such, the Court dismisses any claim of
procedural due process violations arising from Count Four of Plaintiffs’ Amended Complaint.
17

U.

Education Amendments of 1972

Count five of Plaintiffs’ Amended Complaint alleges violations of Title IX of the
Education Amendments of 1972 (“Title IX”), maintaining that “Defendants’ actions against
plaintiff, N.C., constituted sexual harassment and created a hostile learning environment against
plaintiffs because of and based upon N.C.’s gender.” (ECF No. 91

111). Because “Plaintiffs

¶

voluntarily agree[d] to withdraw Count [Five] of the Amended Complaint alleging claims under
Title IX of the Education Amendments of 1972” against Warren, (ECF No. 111-1 at 22), the Court
will only consider Plaintiffs’ argument as against the Board Defendants.
Title IX provides 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).

To survive a motion to dismiss on a Title IX claim, “it is true that [a] plaintiff does not need to
provide detailed factual support for its allegations.

.

.

[but] the plaintiffs allegations must amount

to more than mere conclusory allegations.” Butler v. Mountain View $ch. Dist., No. 12-2038, 2013
WL 4520839, at *7 (M.D. Pa. Aug. 26, 2013); see also Winter v, Pa. State Univ., 172 F. Supp. 3d
756, 775 (M.D. Pa. 2016) (“A plaintiff alleging racial or gender discrimination by a university
[under Title IX] must do more than recite conclusory assertions.” (alteration in original) (citations
omitted)).
Here, the Board Defendants argue that “N.C. has not pled a harassment claim under Title
IX” because “[t]here is no allegation in the Amended Complaint that the harassment and teasing
was motivated by N.C.’s gender. Rather, the pleading makes clear that the alleged harassment and
hostile environment was caused by the alleged relationship between

.

.

.

Colombo and Warren.”

(ECF No. 104-1 at 24-25). Plaintiffs maintain, however, that their assertion that “Defendant’s
18

actions against plaintiff, N.C., constituted sexual harassment and created a hostile learning
environment against plaintiffs because ofand based upon N. C. ‘s gender,” is enough to survive a
motion to dismiss. (ECF No. 111-5 at 19).
The Court agrees with the Board Defendants. Plaintiffs’ statement that N.C. suffered
sexual harassment and a hostile learning environment “because of and based upon N.C.’s gender”
is wholly conclusory. Plaintiffs provide no facts in support of this allegation and as such, their
claim is dismissed. See Tafuto v. N.J Inst. ofTech., No. 10-4521, 2011 WL 3163240, at *3 (D.N.J.
July 26, 2011) (“Plaintiffs minimal effort—an attempt to provide ‘threadbare recitals of [the]
cause of action’s elements, supported by mere conclusory statements’—convinces this Court to
dismiss Plaintiffs Title IX.

.

.

claim.” (alteration in original) (citations omitted)); Harris v. Saint

Joseph’s Univ., No. 13-3937, 2014 WL 1910242, at *4 (E.D. Pa. May 13, 2014) (“A plaintiff
alleging racial or gender discrimination by a university [under Title IX] must do more than recite
conclusory assertions.” (alteration in original) (citations omitted)).
E.

Individuals with Disabilities Education Act and Rehabilitation Act

Count Six of Plaintiffs’ Amended Complaint is brought pursuant to the Individuals with
Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act (“Section 504”).
Through the IDEA, 20 U.S.C.

§

1400, et seq., the federal government provides funding to assist

states in educating children with disabilities living within their borders. 20 U.S.C.

§

14l2(a)(1)(A).

The IDEA requires that a state receiving federal education funding provide a “free appropriate
public education” (“FAPE”) to disabled children.

Id.

Section 504 prohibits disability

discrimination by school districts receiving federal financial assistance, providing that:
No otherwise qualified individual with a disability in the United States
shall,
solely by reason of his or her disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or
.

19

.

.

activity receiving federal financial assistance or under any program or activity
conducted by any Executive agency.
29 U.S.C.

§

794(a).

Defendants argue that this Court does not have subject matter jurisdiction over Plaintiffs’
IDEA and Section 504 claims because Plaintiffs failed to exhaust their administrative remedies
pursuant to the requirements of the IDEA. (ECF Nos. 103-2 at 23-25, 104-1 at 26-30). Plaintiffs
do not dispute that their administrative remedies under the IDEA remain unexhausted; rather, they
respond that “there is no need to exhaust administrative remedies” because such exhaustion would
be futile. (ECF Nos. 111-1 at 22-24, 111-5 at 19-2 1). Plaintiffs further argue that their Section
504 claim is not subject to the IDEA exhaustion requirements. (ECF Nos. 111-1 at 24-25, 111-5
at 21-22).
The Exhaustion Requirement

1.

Pursuant to the IDEA, a district court has subject matter jurisdiction over civil actions
seeking relief available under the IDEA only after the plaintiffs exhaust their administrative
remedies. 20 U.S.C.

§

1415(1) (“[B]efore the filing of a civil action under such laws seeking relief

that is also available under this subchapter, the procedures under subsections (f) and (g) shall be
exhausted to the same extent as would be required had the action been brought under this
subchapter.”). The Third Circuit has held that this provision applies to claims brought under
Section 504 of the Rehabilitation Act. See Batchelor v. Rose Tree Media $ch. Dist., 759 f.3d 266,
272 (3d Cir. 2014) (holding that the IDEA “bars plaintiffs from circumventing [the] IDEA’s
exhaustion requirement by taking claims that could have been brought under IDEA and
repackaging them as claims under some other statute—e.g.,
Act” (alteration in original) (citations omitted)).

20

.

.

.

section 504 of the Rehabilitation

2.

Applicability of the IDEA’s Exhaustion Requirement

“[D]etermining if the IDEA’s administrative process must be exhausted before bringing
claims in federal court turns on whether the parties could have asserted the claims under the IDEA.
Intertwined with this inquiry is whether the claim could have been remedied by the IDEA’s
administrative process.” Id. at 273. Thus, because “[t]he IDEA affords parents of a disabled child
the opportunity to present a complaint ‘with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a free appropriate public
education to such child{,J” the relevant inquiry is whether the Plaintiffs’ claims “relate” to the
identification, evaluation, or educational placement of a disabled student. Id. at 274 (citing 20
U.S.C.

§

1415(b)(6)(A)).

Plaintiffs allege that Defendants violated Section 504 by failing “to protect Brandon from
severe, pervasive[,J and objectively offensive harassment.” (ECF No. 91

¶

120). The alleged

result of Defendants’ failure was, inter alia, exclusion “from participation in
benefits and

.

.

.

discrimination.” (Id.

¶ 128).

.

.

.

educational

The Court finds that Plaintiffs’ claim relates to the

identification, evaluation, and educational placement of a disabled student. See MS. v. Marple
Newtown Sch. Dist., 635 F. App’x 69, 72 (3d Cir. 2015) (holding that the parents of a high school
student were required to exhaust the IDEA administrative remedies before bringing a Section 504
claim against the school district because a claim arising out of harassment by two fellow students
intrinsically concerned the student’s educational placement under the IDEA and related to the
district’s duty to provide an appropriate public education to the student under the IDEA); MM v.
Tredyffrin/Easttown $ch. Dist., No. 06-1966, 2006 WL 2561242, at *8 (E.D. Pa. Sept. 1, 2006)
(“Furthermore, Plaintiffs’ Section 504 claim is within the ambit of the IDEA administrative
process because Plaintiffs assert that Defendants’ discrimination, based on M.’s handicap,
21

interfered with his education and led to the denial of a FAPE.”). Therefore, the IDEA’s exhaustion
requirement applies to Plaintiffs’ Section 504 claim. See Batchetor, 759 f.3d at 274 (holding that
a Section 504 claim alleging numerous actions by school district to sabotage student’s education
“‘relate[s] unmistakably’ to the provision of a [free appropriate public education,] and [is] thus
subject to the IDEA’s exhaustion requirement” (citations omitted)).
3.

Exceptions to the IDEA’s Exhaustion Requirement

Having found that Plaintiffs’ Section 504 claim is subject to the IDEA’s exhaustion
requirement, the Court must still consider whether an exception to the IDEA’ s exhaustion
requirement applies to Plaintiffs’ IDEA and Section 504 claims. Plaintiffs do not dispute that their
administrative remedies under the IDEA remain unexhausted, but rather argue that any such
requirement would be futile because Brandon has already graduated from high school and is
seeking monetary damages. (ECF Nos. 111-1 at 22-24, 111-5 at 19-21).
Previously, courts in this circuit have held actions seeking compensatory damages to be
exempt from exhaustion. See, e.g., D.G. v. Somerset Hilts Sch. Dist., 559 F. $upp. 2d 484, 495
n.3 (D.N.J. 2008). However, in a July 2014 decision, the Third Circuit Court of Appeals clarified
that whether a claim is subject to exhaustion does not depend on the form of relief, but whether
the underlying cause of action is so related to the provision of a free appropriate public education
that it should first be addressed by the administrative process. See Batchelor, 759 F.3d at 273-74.
Such is the case here.
In Batchetor v. Rose Tree Media School District, the Third Circuit observed that “the
theory behind [Plaintiffs’] grievance may activate the IDEA’s process, even if the [Plaintiffs]
want[] a form of relief that the IDEA does not supply.” Id. at 276 (citations omitted). Thus:
In response to a school district’s alleged bad behavior, the educational harms
22

suffered by children with disabilities will be addressed first and foremost during
the IDEA’s administrative process. Once these educational deficiencies have been
addressed, victims may seek further remedy in court pursuant to statutory schemes
allowing for compensatory and punitive damages, such as Section 504[.J
Id. at 27$. Therefore, the question of whether a plaintiff is exempt from exhaustion does not focus
on the relief requested, but on the educational harm suffered. See id.
Preliminarily, the Court notes that, like the plaintiff in Batchetor, Plaintiffs’ requested relief
is not confined to compensatory damages. In addition to compensatory damages, plaintiffs also
request “pecuniary damages,” “punitive damages,” “reasonable attorneys’ fees,” and “such further
relief which the Court may deem just and equitable.” (ECF No. 91 at 24). In an IDEA due process
hearing, an administrative law judge (“AU”) may grant relief in the form of attorneys’ fees,
compensatory education, and reimbursement. See Shore Reg’? High Sch. Bd. ofEduc. v. P.S., 381
F.3d 194, 197 (3d Cir. 2004) (affirming an administrative law judge’s order for a school district
“to reimburse [the student] for the out-of-district tuition and related costs, including [the student’]s
reasonable attorneys’ fees”). Thus, Plaintiffs do, in fact, seek relief available under the IDEA.
The Court next turns to whether the allegations underlying the Plaintiffs’ causes of action
“activate the IDEA’s process.” The alleged result of Defendants’ IDEA and Section 504 violations
is that Brandon was “deprived.

.

.

of access to educational opportunities and benefits provided by

the school,” and was “excluded from participation in
discrimination.” (ECF No. 91

¶J 120,

.

.

.

educational benefits and subject to

128). Deficiencies in the provision of a free appropriate

public education are the very grievances upon which the IDEA’s administrative process was built
to address. 20 U.S.C.

§

1400(d)(1)(A) (“The purpose[] of [the IDEA is] to ensure that all children

with disabilities have available to them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs[.]”). If the allegations in the
Amended Complaint had been proven before an AU, Brandon and Colombo would have had
23

access to specifically tailored relief, guided by administrative officials with expertise in the field
of education. In addition, the AU could have fashioned further appropriate remedies on an ad hoc
basis “to ensure that [Brandon] [wa]s fully compensated for [Defendants’] past violations.. under
.

the IDEA and develop an appropriate equitable award.” D.f v. Collingwood Borough Bd. of
Educ., 694 F.3d 488, 498-99 (3d Cir. 2012) (citations omitted). Thus, the nature of Plaintiffs’
educational harms are such that they could have found effective relief through the administrative
process.
Plaintiffs also argue that they should be excused from exhaustion because Brandon has
already graduated. Plaintiffs’ argument fails. At the time Plaintiffs filed their original complaint,
November 16, 2012, (Dkt. 12-7132, ECF No. 1), Brandon was under the age of twenty-one. (ECF
No. 31 at 1 (“Brandon Colombo (D.O.B. 08/31/1992”))). Pursuant to the IDEA, a school district’s
obligation to provide a free appropriate public education does not terminate until the child reaches
the age of twenty-one. 20 U.S.C.

§ 1412(a)(1)(A); see also Batchelor, 759 F.3d at 278 n.14 (noting

that IDEA remedies were “available even though [the student] ha[d] sincegraduated from high
school” because “[u]nder the IDEA, a school district’s obligation to provide a FAPE terminates
when the child reaches the age of twenty-one”); R.D. v. Souderton Area Sch. Dist., No. 11-2995,
2015 WL 2395156, at *3 n.3 (E.D. Pa. May 19, 2015) (noting that “based on informationprovided
in the original, verified Complaint,” the student “is in fact nineteen-years-old.

.

.

.

[but] retain[s]

her IDEA-based rights through age 21”). Brandon, at the age of twenty, was therefore within the
scope of the IDEA at the time Plaintiffs’ original complaint was filed, and could have received
various remedies via the administrative process, including financial reimbursement, compensatory
education, and a more developed factual record.
Even taking all inferences in Plaintiffs’ favor, the present action falls within the ambit of
24

the IDEA exhaustion requirement. Plaintiffs failed to satisfy the exhaustion requirement and are
unable to demonstrate that an exception applies. Accordingly, this Court cannot assert subject
matter jurisdiction over the Plaintiffs’ IDEA and Section 504 claims.
F.

Remaining State Law Claims

Preliminarily, the Court notes that the consolidation of Plaintiffs’ case, (Dkt. 12-7132),
with Colombo’s case, where, through separate motion practice, the Court denied in part and
granted in part Defendants’ motions to dismiss, (Dkt. 11-785), did not create a single case for
jurisdictional purposes. See Deluxe Bldg. Sys., Inc. v. Constructamax, Inc., 94 F. Supp. 3d 601,
607 (D.N.J. 2013) (“[T]he order consolidating these two cases did not create a single case for
jurisdictional purposes.”); see also Id. (“The Third Circuit

.

.

.

prohibit[sJ the treatment of

consolidated cases as a single action where doing so would diminish or enlarge the rights of a
party.

That includes cases in which consolidated treatment would implicate the court’s

jurisdiction.”).
As to Plaintiffs’ remaining state law claims, the Court declines to exercise supplemental
jurisdiction. The basic statutory grant of federal court subject-matter jurisdiction provides for
federal-question jurisdiction and for diversity of citizenship jurisdiction. Arbaugh v. Y&H Corp.,
546 U.S. 500, 513 (2006) (citing 28 U.S.C.

§

1331, 1332). “A plaintiff properly invokes

§

1331

jurisdiction when she pleads a colorable claim ‘arising under’ the Constitution or laws of the
United States.” Id. Here, as Plaintiffs failed to state a cognizable federal claim, the Court does
not have federal question jurisdiction. To invoke

§

1332, Plaintiffs must state “a claim between

parties of diverse citizenship that exceeds the required jurisdictional amount, currently $ 75,000.”
Id. Here, as Plaintiffs cannot plead complete diversity of citizenship, the Court cannot consider
their claims under diversity jurisdiction, Further, the Court declines to exercise supplemental
25

jurisdiction pursuant to 22 U.S.C.

§

1367(c) over any remaining state-law claims arising in the

Amended Complaint. Accordingly, the Court dismisses Plaintiffs’ Amended Complaint in its
entirety.
V.

CONCLUSION
For the reasons set forth above, Defendants’ motions to dismiss are granted. To the extent

the pleading deficiencies identified by this Court can be cured by way of amendment, Plaintiffs
are hereby granted thirty (30) days to file an amended pleading.

An appropriate Order

accompanies this Opinion.

DATED:

7/

K

)-O

CLAIRE C. CECCHI, U.S.D.J.

26