Zell et al v. Ricci et al

Filing 73

MEMORANDUM AND ORDER granting 26 Motion to Dismiss for Failure to State a Claim; granting 27 Motion to Dismiss for Failure to State a Claim; granting 27 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 51 MOTION for supplemental juristiction and notice of family court case dismissal ; denying 67 Motion for Sanctions; denying 68 Motion for Sanctions; granting 12 Motion to Dismiss for Failure to State a Claim; granting 14 Motion to Dismiss for Failure to State a Claim; granting 22 Motion to Dismiss; granting 22 Motion to Dismiss for Failure to State a Claim; granting 22 Motion to Dismiss for Lack of Jurisdiction. So Ordered by Chief Judge William E. Smith on 3/30/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
__________________________________________
)
)
)
)
)
Plaintiffs,
)
v.
)
)
BARRY RICCI, alias, Superintendent of
)
Chariho Regional School District in his
)
individual and official capacities;
)
CHARIHO REGIONAL SCHOOL DISTRICT, by
)
and through its Superintendent, Barry
)
Ricci, alias; RYAN BRIDGHAM, alias, Dean )
of Students Chariho High School, in his
)
individual and official capacities;
)
LAURIE WEBER, alias, Former Principal of )
Chariho High School in her individual
)
and official capacities; JON ANDERSON
)
Esq., alias, Chariho Regional School
)
District Attorney in his individual and
)
official capacities; THE CHARIHO SCHOOL
)
COMMITTEE, by and through its Chairperson,)
Sylvia Stanley, alias, in her official
)
capacity; CRAIG LOUZON, alias, in his
)
individual and official capacity as the
)
former Chair of the Chariho School
)
Committee; RACHEL MCGINLEY, alias, in her )
individual capacity; THE RHODE ISLAND
)
DEPARTMENT OF EDUCATION, by and through
)
its Commissioner, Ken Wagner, alias;
)
KEN WAGNER, alias, in his official and
)
individual capacity; THE RHODE ISLAND
)
COUNCIL OF ELEMENTARY AND SECONDARY
)
EDUCATION, by and through its Chair
)
Daniel P. McConaghy, alias; DANIEL
)
P. MCCONAGHY, alias, in his individual
)
and official capacity; JOHN/JANE DOES
)
1-20; and JOHN DOE GOVERNMENT
)
ENTITIES/BODIES 1-10,
)
)
Defendants.
)
__________________________________________)
MARK ZELL, and BETH ZELL,
individually and on behalf of K.Z.,
a minor,

C.A. No. 17-277 WES

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
The case comes before the Court on multiple motions:

(1)

Rhode Island Department of Education (“RIDE”) and Ken Wagner’s
(“Commissioner Wagner”) (collectively, “RIDE Defendants”) Motion
To Dismiss (ECF No. 12); (2) Rhode Island Council of Elementary
and Secondary Education (“Council”) and Daniel P. McConaghy’s
(“Chair McConaghy”) (collectively, “Council Defendants”) Motion
To Dismiss (ECF No. 14); (3) Jon Anderson’s Motion To Dismiss
(ECF No. 22); (4) Rachel McGinley’s Motion To Dismiss (ECF No.
26);

(5)

School

Ryan

Bridgham

District

(“Dean

(“CRSD”),

Bridgham”),
Chariho

Chariho
School

Regional
Committee

(“Committee”), Craig Louzon (“Chairperson Louzon”), Barry Ricci
(“Superintendent Ricci”), and Laurie Weber’s (“Principal Weber”)
(collectively, “Chariho Defendants”) Motion To Dismiss (ECF No.
27); and (6) Plaintiffs’ Motion for Supplemental Jurisdiction
and Notice of Family Court Dismissal (ECF No. 51).
I. Background
“I wish we could all get along like we used to in middle
school.

I wish I could bake a cake filled with rainbows and

smiles and everyone would eat and be happy.” 1

Although the

circumstances leading to this case started out with rainbows and
1

Mean Girls (Paramount Pictures 2004).
2

smiles, it wasn’t that way for long; it was high school, after
all.

To be certain, it was October 16, 2015, the Friday of the

annual “Spirit Week” at Chariho High School (“CHS”):

a day

marked by “mayhem” and “school-sponsored bad decisions” leading
up to the “big homecoming football game.” 2

(Pls.’ Second Am.

Compl. (“Compl.”) ¶¶ 39, 41-43, ECF No. 41.)

In years past, for

example, the high school permitted “actual hay and live animals”
to fill the halls.

(Id. ¶ 43.)

The absence of live animals

roaming the halls this year didn’t make it any less of a zoo.
The day began early with the morning procession.
39.)

(Id. ¶

Senior students sporting togas and armed with silly string

lined up outside and prepared to march through the halls while
spraying each other and underclassman who occupied the halls in
witness and participation of the fun-filled event.
41, 46.)

(Id. ¶¶ 40-

One such student populating the halls was Plaintiff,

K.Z., a then-junior field-hockey player who donned her school
spirit in her uniform.

(Id. ¶¶ 37, 48-49.)

K.Z., like many

other students who watched the procession, came prepared with
her own can of silly string.

(Id. ¶ 48.)

As seniors paraded through the halls, K.Z., who had been
standing among a group of friends on the right side of the
2

The Court recounts the facts, as it must, in the light
most favorable to Plaintiffs, as the nonmoving parties.
Kando
v. R.I. State Bd. of Elections, 880 F.3d 53, 58 (1st Cir. 2018).
3

hallway, sprayed her silly string in the air “indiscriminately”
toward various other students passing her by.
53.)

Many

other

students

sprayed

silly

(Compl. ¶¶ 49,

string,

too,

both

through the air and directly at other students, including in
their faces at close range.

(Id. ¶ 54.)

Silly string had been

flying from all directions.
Still standing among her friends, K.Z. took aim at a group
of

toga-sporting

students

across the hallway.

positioned

some

distance

(Id. ¶¶ 50, 53, 60-66.)

down

and

Her silly string

rained down on a group of two or more girls, which included
Defendant Rachel McGinley.
back

turned

and

still

(Id. ¶¶ 66-69.)

conversing

began sprinting toward her.
phone

in

hand

and

her

with

While K.Z. had her

her

friends,

(Id. ¶¶ 71-74.)

right

arm

raised

McGinley

With her cell

over

K.Z.’s

head,

McGinley used the hard edge of her phone to land several “hammer
blows” to K.Z.’s head.
(Id. ¶ 82.)

(Id. ¶¶ 77-80.)

With her cell phone in tow, McGinley took a victory

lap, laughing and smiling.
and

feeling

head

remained only
office.

(Id.

comprehending

K.Z. fell forward.

pain,

shortly
¶¶
Dean

(Id. ¶ 84.)

struggled

when

86-87.)

Dean

to

Bridgham

When

Bridgham’s

off

K.Z., still confused

there,

comments,

class,
called

K.Z.

where

K.Z.

had

although

to

she
his

difficulty
K.Z.

did

understand that McGinley informed school officials that she had
4

struck K.Z. in the head.
questions,

none

of

(Id. ¶ 88.)

which

concerned

Bridgham sent K.Z. back to class.
called

back

to

Dean

Bridgham’s

After asking very few
K.Z.’s

(Id. ¶¶ 90-92.)
office

Principal Weber was also present. 3

wellbeing,

shortly

Dean

K.Z. was

after,

where

(Id. ¶¶ 7, 95-96.)

After

little questioning, Dean Bridgham informed K.Z. that she would
face

a

one-day

suspension

for

fight)”

because

the

concluded

school

“fighting

(or

she

instigating

had

sprayed

string in McGinley’s face and called her a “bitch.”
104-05, 111.)

silly

(Id. ¶¶

McGinley also received a one-day suspension for

the same offense.
Visibly

(Id. ¶ 112.)

shaken

and

deeply

perturbed

by

the

news

of

suspension, K.Z. called her father, Plaintiff Mark Zell.
115.)

a

her

(Id. ¶

K.Z. was then directed to wait in another room where

other students had been working.

(Id. ¶ 116.)

While there,

friends of McGinley taunted K.Z. for McGinley “beat[ing] [her]
up.”

(Id. ¶ 118.)

At about 11:00 a.m., Mr. Zell arrived at CHS

and inquired whether anyone had evaluated K.Z. for a concussion,
to which school officials agreed “would be a good idea.” 4

(Id.

3

Principal Weber attended one or both of K.Z.’s meetings
with Dean Bridgham. (Compl. ¶ 96.)
4

Before that point, no teacher or other school official
had asked K.Z. about her head injury or suggested that her
injury be medically evaluated. (Compl. ¶ 90.)
5

¶¶

120-21.)

immediately
confirmed

The

school

concluded
that

thereafter.

nurse

then

K.Z.

was

likely

had

a

evaluated

“serious

K.Z.

concussed;

K.Z.

and

a

hospital

concussion”

shortly

(Id. ¶¶ 122-26.)

Later that evening, Mr. and Mrs. Zell visited the Richmond
Police

Department

(“PD”)

to

file

a

police

report

assault and battery of their minor daughter.”
officer

first

arrested;

told

however,

them

that

without

McGinley

divulging

(Id. ¶ 127.)

would

its

“for

be

the
An

immediately

reasoning,

the

PD

eventually informed Mr. and Mrs. Zell that the School Resource
Officer would arrest McGinley at school the following Monday,
and then that the PD would not arrest McGinley at all unless
K.Z. was also arrested for “Disorderly Conduct.” 5

(Id. ¶¶ 128-

29, 132-33.)

Mr. and Mrs. Zell pressed school officials as to

why

would

McGinley

consistent

with

the

not

be

PD’s

arrested,
statement

and
that

their
she

response

could

only

was
be

arrested for “disorderly conduct” if K.Z., too, was arrested.
(Id. ¶¶ 139-40.)

Not satisfied with this response and because

they feared “unjustified criminal charges against K.Z.,” Mr. and

5

The PD’s pivot in plans with respect to K.Z. and McGinley
followed
an
email
exchange
between
the
PD
Chief
and
Superintendent Ricci that discussed Mr. Zell or his allegations
“in a less than favorable light.” (Compl. ¶¶ 130-31.)
6

Mrs. Zell dropped criminal charges against McGinley.

(Id. ¶

141.)
From
vigorous

this

point,

challenge

however,

to

the

Mr.

and

school’s

Mrs.

decision

Zell
to

launched

suspend

a

K.Z.

First, while K.Z. was at home recovering for about six days, Mr.
Zell appealed her suspension to Superintendent Ricci and “wrote
a

detailed

friends,

accounting

and

Superintendent

the

of

events

video.”

Ricci

asked

as

(Id.
to

reported
¶¶

speak

with

by

K.Z.,

142-44.)
K.Z.,

her

Although

he

wrote

his

decision that upheld the suspension before ever speaking to her
directly. 6

(Id. ¶¶ 145, 147.)

Next,

Plaintiffs

appealed

Ricci to the Committee.
on

or

around

represented
upholding

of

and

K.Z.’s

decision

(Id. ¶ 154.)

February

CRSD

the

23,

2016,

suspension.”

Superintendent

At the Committee hearing

Defendant

Superintendent

of

Ricci,

(Id.

¶¶

Attorney

Anderson

“prosecuting

the

157,

The

167.)

hearing was conducted by another attorney for the Committee, who
Superintendent
Anderson’s

Ricci

hired.

presentation,

he

(Id.
argued

¶

167.)

that

“a

During
cell

Attorney

phone

is

a

teenage girl’s most prized possession” never to be used as a
weapon despite knowing that McGinley indeed struck K.Z. with her
6

Mr. Zell requested that Superintendent Ricci wait to
render his decision until speaking with K.Z., after she returned
to school fully recovered. (Compl. ¶ 146.)
7

cell

phone,

while

only

presenting

portions

of

the

displaying the altercation between K.Z. and McGinley. 7
¶¶ 168-70.)

video

(See id.

The attorney presiding over the Committee’s hearing

precluded Plaintiff from showing another video that allegedly
displayed McGinley striking another student in the head with her
cell phone on a school bus.
signed

by

Chairperson

suspension.

(Id. ¶¶ 173-74.)

Louzon,

the

Committee

In a decision
upheld

K.Z.’s

(Id. ¶¶ 180-81.)

Following

the

Committee’s

decision,

Plaintiffs

present counsel and took another appeal to RIDE.

hired

(Id. ¶ 182.)

RIDE held a hearing in the summer of 2016, over which a RIDE
Hearing

Officer

“included

two

presided.
full

days

(Id.
with

¶¶

183,

over

ten

192.)
(10)

“resulted in nearly a foot of transcripts.”
such

witness

was

K.Z.,

who

McGinley struck her head.

admitted

to

(Id. ¶ 185.)

The

hearing

witnesses”

(Id. ¶ 183.)

saying

“bitch”

and
One

after

K.Z.’s former best

friend, A. Doe, also testified that K.Z. “yelled ‘bitch’ before
spraying silly string” at McGinley.

(Id. ¶ 184.)

A. Doe, whose

truthfulness was called into doubt at the RIDE hearing, also
recalled that K.Z. had asked whether she should have sprayed
7

Attorney Anderson omitted parts of the video displaying
“K.Z. spray[ing] silly string in the air without incident, . . .
the other students spraying silly string, and . . . K.Z. being
sprayed with silly string directly in the face.”
(Compl. ¶
170.)
8

McGinley before she did so.

(Id. ¶¶ 186-87.)

Dean Bridgham

also “explain[ed] that there was a lack of some needed policy or
some

related

failure

by

the

school

district

situation, including K.Z.’s concussion.”

to

handle

(Id. ¶ 188.)

the
Dean

Bridgham explained that he notified Superintendent Ricci of this
“failure,” but he was cutoff before continuing his testimony.
(Id. ¶¶ 189-92.)
examination

by

The RIDE hearing also included extensive cross
Plaintiffs

of

the

various

Plaintiffs also presented an expert witness.
95.)

Despite

the

length

of

the

witnesses,

and

hearing

(See id. ¶¶ 194and

the

amount

of

witnesses produced, the decision that came out of the hearing
was, to the Plaintiffs’ way of thinking, “shockingly short” and
omitted citation to much of Plaintiffs’ evidence.

(Id. ¶ 198.)

During a break at the RIDE hearing, the Hearing Officer and
Superintendent Ricci were witnessed alone in a room “talking
with the video playing as [Superintendent] Ricci pointed out
parts of the video to the RIDE Hearing Officer ex parte.”
¶

196.)

This

ex

parte

disclosed to Plaintiffs.
Nevertheless,

meeting

was

never

authorized

(Id.
by

or

(Id. ¶ 197.)

Plaintiffs

persisted.

Viewing

RIDE’s

decision as plagued with error (five specifically), (Compl. ¶¶

9

290-95), Plaintiffs appealed to the Council. 8

(Id. ¶ 200.)

In

preparation for their hearing, the Council received the full
record encompassing “nearly a foot-high stack of transcripts,”
Plaintiffs’ forty-five page (single spaced) appeal brief infused
with hundreds of record and legal citations and allegations of
error,

CRSD’s

eighteen-page

thirty-six-page

reply

opposition

brief.

(Id.

brief,
¶¶

and

Plaintiffs’

207-08.)

After

approximately a twenty-minute argument by Plaintiffs’ counsel,
“a few comments by” CRSD’s attorney, and a brief, five-minute
deliberation, 9 the Council delivered an oral decision upholding
the decision below.

(See id. ¶¶ 209, 212.)

The oral decision

was followed by a five-page written decision on May 9, 2017,
which

affirmed

K.Z.’s

suspension

Plaintiffs’ five averments of error.

and

rejected

each

of

(Id. ¶¶ 214-15.)

8

While awaiting the Council’s review, CHS required K.Z. to
serve her “in-school suspension.” (Compl. ¶ 201.)
Before that
time, K.Z. requested an accommodation under Title II of the
Americans with Disabilities Act (“ADA”) and Section 504 of the
Rehabilitation Act to serve her suspension at home, rather than
at school, but Plaintiff’s request was denied.
(Id. ¶¶ 202,
205.)
9

During their deliberation, members of the Council were
overheard “laughing loudly and discussing matters irrelevant to
the proceeding.” (Compl. ¶ 210.)
10

This eleven-count, forty-nine-page Complaint followed.
then came Defendants’ various motions to dismiss.

And

On February

1, 2018, the Court heard oral argument in this matter.
II. Legal Standard
In considering a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court must “accept the
truth

of

all

well-pleaded

facts

and

draw

inferences therefrom in the pleader’s favor.”
863

F.3d

6,

10

(1st

Cir.

2017)

(quoting

all

reasonable

Riggs v. Curran,
Guadalupe-Báez

Pesquera, 819 F.3d 509, 514 (1st Cir. 2016)).

v.

However, “to

survive a Rule 12(b)(6) motion . . . a complaint must contain
factual

allegations

that

‘raise

a

right

to

relief

above

the

speculative level, on the assumption that all the allegations in
the

complaint

are

true . . . .’”

Pérez-Acevedo

v.

Rivero-

Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (quoting Bell Atl. v.
Twombly, 550 U.S. 544, 555 (2007)).

In other words, although

“the pleading standard . . . does not require ‘detailed factual
allegations,’ . . .

it

demands

more

than

defendant-unlawfully-harmed-me accusation.”

an

unadorned,

the-

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

“A

pleading that offers ‘labels and conclusions’ or a ‘formulaic
recitation of the elements of a cause of action will not do.’”
Id. (quoting Twombly, 550 U.S. at 555).
11

A similar standard is applied when the Court construes a
motion to dismiss under Rule 12(b)(1).
45 F.3d 520, 522 (1st Cir. 1995).

Murphy v. United States,

The Court, in its review,

remains cognizant that “the party invoking the jurisdiction of a
federal

court

carries

the

burden

of

proving

its

existence.”

Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st
Cir. 1993).
III. Discussion
A. Standing

of

Mark

and

Beth

Zell

(“[They

don’t]

even

go

here”) 10
At the outset, Plaintiffs (parents) Mark and Beth Zell lack
standing
asserted

as

to

on

any

their

of

their

own

claims.

behalf

This
those

and

includes

claims

brought

in

a

representative capacity pursuant to Rule 17(c) of the Federal
Rules of Civil Procedure.
Starting

with

the

latter,

it

is

now

undisputed

that

Plaintiff K.Z. reached the age of majority prior to Plaintiffs’
filing

the

Second

Amended

Complaint

on

November

24,

2017. 11

See, e.g., Lausin ex rel. Lausin v. Bishko, 727 F. Supp. 2d 610,
625 n.5 (N.D. Ohio 2010) (“[W]hen [the minor plaintiff] became

10

Mean Girls, supra note 1.

11

Counsel for Plaintiffs conceded
argument before the Court on February 1.
12

this

point

during

18

years

old,

lawsuit

in

[her

a

mother]

lost

representative

her

standing

capacity

on

to

bring

behalf

this

of

[her

daughter].”); see also Vandiver v. Hardin Cty. Bd. of Educ., 925
F.2d 927, 930 (6th Cir. 1991) (holding parents lost standing to
bring claims in representative capacity to enforce son’s rights
when son turned eighteen, the age of legal majority under state
law); cf. R.I. Gen. Laws § 15-12-1(a) (“[A]ll persons who have
attained the age of eighteen (18) years shall be deemed to be
persons of full legal age.”).
Plaintiffs’ Mark and Beth Zell’s claims on their own behalf
also fall away for lack of standing.
suggest

a

procedural-due-process

First, in Count I, they

violation

premised

on

the

assertion that they maintained a “property interest in not being
deprived of their money without due process of law.”

(Compl. ¶

229.)

and

Plaintiffs’

resources

to

recognized
Indeed,

averment

prosecute

property

“the

expense

this

interest
of

that

they

lawsuit
under

defending

spent
does

the

itself a protectable property interest.”

not

Due

against

money

a

other

implicate

a

Process

Clause.

lawsuit

is

not

Powell v. Fujimoto,

119 F. App’x 803, 806 (7th Cir. 2004); see also Workman v.
Jordan, 32 F.3d 475, 480 n.4 (10th Cir. 1994) (“These incidental
losses do not give rise to an independent protected property
interest.”).
13

Try as they might to allege a separate and distinct injury,
the remainder of Mark and Beth Zell’s allegations are entirely
derivative of their daughter’s.

Yet one person lacks standing

to advance the constitutional rights of another.

See United

States v. Raines, 362 U.S. 17, 21 (1960); see also Pittsley v.
Warish,

927

F.2d

3,

8

(1st

Cir.

1991),

abrogated

on

other

grounds by Martinez v. Cui, 608 F.3d 54, 63-64 (1st Cir. 2010)
(“[O]nly the person toward whom the state action was directed,
and

not

those

incidentally

affected,

may

maintain

a

§

1983

claim.”).
Mark and Beth Zell lack standing as to each of their claims
(Counts

I,

II,

Plaintiffs’

and

III).

Complaint

Accordingly,

the

claims

as

only

entirely

analysis
they

Therefore,
as

that

pertain

to

follows
to

the
Mark

Court
and

discusses

Plaintiff

K.Z,

dismisses

Beth

Zell.

Plaintiffs’
on

her

own

behalf. 12
B. Plaintiff’s Constitutional Claims
1. Count I
Count I fails to state a claim.
U.S.C.

§

violations

1983,
under

Plaintiff
the

Fifth

alleges
and

12

Here, pursuant to 42
procedural-due-process

Fourteenth

Amendments

of

the

To this end, hereinafter, the Court refers to a singular
“Plaintiff.”
14

United States Constitution and Article 1, Section 2 of the Rhode
Island

Constitution

against

all

Defendants

but

McGinley. 13

(Compl. 27.)
Plaintiff

avers

that

Defendants

denied

her

“liberty

interest in not being deprived of her reputation, a right to not
endure ‘stigma’ plus a right not to be deprived of present or
future educational, scholarship, and job opportunities without
procedural due process of law.”
Plaintiff

alleges

that

Defendants

(Id. ¶ 228.)
denied

her

Specifically,
procedural

due

process by “wrongly accusing Plaintiff K.Z. of instigating a
fight, assigning a suspension permanently on her record, and
when appealed, . . . depriv[ing] Plaintiffs of proper notice,
opportunity to be heard, and/or a fair hearing with an impartial
decision maker” in each layer of appeal.

(Id. ¶ 231.)

The Court need not even delve into whether Plaintiff states
a claim for a violation of procedural due process, i.e., whether
Plaintiff’s claim implicates a viable liberty interest of which
Plaintiff could be deprived, because the answer to a separate
question, “what process is due,” see Morrissey v. Brewer, 408
U.S. 471, 481 (1972), is fatal to Plaintiff’s claim.

13

That is,

The Court’s analysis of Plaintiff’s claims under the
Rhode Island Constitution mirrors its discussion of Plaintiff’s
federal-constitutional claims. See Pelland v. Rhode Island, 317
F. Supp. 2d 86, 97 (D.R.I. 2004).
15

as a matter of law, based on the punishment K.Z. received – a
one-day, in-school suspension – it is clear that she received
significantly more process than she was due.
No

inference

Plaintiff

from

the

constitutionally

that

this

Court

adequate

draw

could

conclusion

ineluctable

could

that

she

process.

Indeed,

it

is

rescue

received
baffling,

based on how much process Plaintiff (and her parents) received,
that she could, with a straight face, assert a procedural-dueprocess

violation

in

this

Court.

The

process

Plaintiff

received, as outlined by her complaint, was as follows.

Dean

Bridgham

that

met

with

K.Z.

with

respect

to

the

incident

Defendant McGinley brought to the attention of administration
prior to making any discipline determination.
91-92.)
95.)

(Compl. ¶¶ 87-89,

Indeed, Dean Bridgham interviewed K.Z. twice.

(Id. ¶

During the first meeting, Dean Bridgham informed K.Z. that

McGinley had informed school officials that “she had hit K.Z. in
the head.”

(Id. ¶ 88.)

Principal Weber was also present in at

least one of Dean Bridgham’s meetings with K.Z.

(Id. ¶ 96.)

Then, Plaintiff was allowed to challenge her discipline in an
appeal

before

Superintendent

Ricci,

who

was

provided

with

additional evidence including “a detailed accounting of events
as reported by K.Z., her friends, and the video” composed by Mr.
Zell.

(Id. ¶ 144.)

Plaintiff was then permitted another layer
16

of process:

an evidentiary hearing before the Committee, where

she was represented by counsel, who questioned witnesses and
presented

evidence.

(Id.

¶¶

154,

168-74.)

Plaintiff

then

participated in a hearing before the RIDE Hearing Officer, where
more

than

ten

witnesses

(including

an

expert

witness

Plaintiff) testified over the course of two full days.
183, 195.)

for

(Id. ¶¶

The result of this hearing was nearly one foot of

transcripts.

(Id. ¶ 183.)

But that’s not all.

Plaintiff took

another appeal to the Council, where there was another hearing,
exhaustive briefing, and another written decision.

(Id. ¶¶ 200,

207-08.)
Sufficient
‘elaborate

procedural

hearing

due

before’

a

process

neutral

requires

party,

but

“not

an

simply

‘an

informal give-and-take between student and disciplinarian’ which
gives the student ‘an opportunity to explain his version of the
facts.’”
1988)

Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir.

(quoting

Ingraham

v.

(White, J., dissenting)).

White,

430

U.S.

651,

693

(1977)

Plaintiff received more process than

the Constitution dictates.

She was entitled to “notice and an

opportunity

id.

to

be

heard,”

at

12,

before

discipline

was

imposed, and she received that plus numerous full-blown hearings
replete with neutral decision-makers, full adversarial hearings,
and the opportunity to fully argue her case.
17

Therefore, her

procedural-due-process claim (Count I) fails at the threshold.
See id. at 12-13; cf. Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 686 (1986) (“Two days’ suspension from school does not
rise to the level of a penal sanction calling for the full
panoply of procedural due process protections applicable to a
criminal prosecution.”).
2. Count II
In

Count

II,

pursuant

asserts

that,

unlike

to

“similarly

42

U.S.C.

situated

§

1983,

students

Plaintiff
at

Chariho

High School [who] were not singled out,” Defendants singled out
K.Z. for “arbitrary classification and differential treatment”
in violation of her right to equal protection.

(Compl. ¶¶ 249-

More specifically, without identifying such policies, 14

53.)

Plaintiffs blame “arbitrary and capricious” policies, customs,
patterns,

and

practices

allegedly

Plaintiff’s equal-protection rights.

14

in

place

that

infringed

(Id. ¶¶ 254-55.)

This

This alone dooms Plaintiff’s claim. “[A] plaintiff who
brings a section 1983 action against a municipality bears the
burden of showing that, ‘through its deliberate conduct, the
municipality was the “moving force” behind the injury alleged.’”
Haley v. City of Bos., 657 F.3d 39, 51 (1st Cir. 2011) (quoting
Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)). “Such
a plaintiff must ‘identify a municipal “policy” or “custom” that
caused the plaintiff’s injury.’”
Id. (quoting Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978)).
18

claim is directed toward all Defendants but McGinley.

(Id. at

30.)
“[T]he

proponent

of

the

equal

protection

violation

must

show that the parties with whom he seeks to be compared have
engaged in the same activity vis-à-vis the government entity
without such distinguishing or mitigating circumstances as would
render the comparison inutile.”

Cordi-Allen v. Conlon, 494 F.3d

245, 251 (1st Cir. 2007) (citing Perkins v. Brigham & Women’s
Hosp., 78 F.3d 747, 751 (1st Cir. 1996)).

Here, Plaintiff’s

well-pled complaint simply has not satisfied this test.

See

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61,
67 (1st Cir. 2004) (making plain that the First Circuit has not
abandoned

its

oft-cited

notwithstanding,

Rule

principle

12(b)(6)

is

that
not

“notice

entirely

a

pleading
toothless

tiger.” (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d
13, 16 (1st Cir. 1989))).
Plaintiff’s
“similarly

haphazard

situated”

to

approach
a

wide

to

pleading

swath

of

that

she

students

was
who

participated in Spirit Week cannot suffice, even at the motionto-dismiss stage.

(Compl. ¶¶ 250-51.)

In any event, none of

the students that Plaintiff points to are sufficient comparators
to Plaintiff because each of the students differs in several
“relevant respects.”

See Barrington Cove Ltd. P’ship v. R.I.
19

Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001); see
also Wyrostek v. Nash, 984 F. Supp. 2d 22, 30-31 (D.R.I. 2013)
(prohibiting
instance,

“comparison

Plaintiff

of

quaffles

identifies

to

“students

snitches”).
who

For

participate

in

‘spirit week’ and ‘spray[ed] silly string both in the air and
directly

at

classmen,’

especially

those

who

sprayed

‘silly

string’ ‘directly at other students at close range and “in their
faces,”’

those

inappropriate

students

words

at

profanities

another,’

one

‘yelling

and

those

or

other

students

participated in ‘shows of aggressive bantering.’”

who

(Pls.’ Mem.

of Law in Supp. of Pls.’ Obj. to Chariho Defs.’ Mot. To Dismiss
(“Pls.’ Obj. to Chariho Mot.”) 55, ECF No. 39-1 (quoting Compl.
¶¶

46,

54-56.)).

The

breadth

of

Plaintiff’s

comparison

demonstrates its dearth; none of the other students Plaintiff
references are sufficiently similar to her.

And even at the

motion-to-dismiss stage, the Court is not required to accept
hook, line, and sinker Plaintiff’s claim that she sufficiently
pleads membership in a “class of one.”
2d at 31.

Wyrostek, 984 F. Supp.

Count II therefore fails.

3. Count III
Here, Plaintiff suggests that, “in contravention of law,
two or more of the state actor Defendants acting under color of
law and according to government policy, custom, or practice,
20

conspired to harm or injur[e] Plaintiffs by depriving Plaintiffs
of their rights in violation of 42 U.S.C. § 1985.”
269.)

Plaintiff

Attorney

alleges

Anderson

deprivation
rights.

of

that

participated

Plaintiff’s

“an

Chariho

in

a

Defendants

civil

and

conspiracy

equal-protection

and

in

due-process

This unlawful agreement included, Plaintiff suggests,

plans to, among other things:
up

all

(Compl. ¶

unprovoked

assault

improperly investigate and cover

and

battery

by

Defendant

McGinley

against Plaintiff K.Z.,” influence the PD to delay arrest or not
arrest Defendant McGinley, or arrest Plaintiff K.Z. along with
her, and taking various measures to influence the Committee and
RIDE to rule against K.Z.
Plaintiff’s
matter of law.

claim

(Id. ¶ 266.)

on

this

score

is

not

cognizable

as

a

With respect to the equal-protection component,

even assuming Plaintiff could claim to be a “class of one,” her
“membership
special

in

that

protection

class

which

Plaintiff[’s] claim.’”
Oak,

205

original)

F.

App’x

(quoting

is

‘not

would

entitled

make

§

to

1985(3)

the

kind

of

applicable

to

Royal Oak Entm’t, LLC v. City of Royal

389,

399

McGee

v.

(6th

Cir.

2006)

(alteration

in

Schoolcraft

Cmty.

Coll.,

F.

167

App’x 429, 436 (6th Cir. 2006) (“The group of individuals . . .
may

be

neither

a

relatively
based

on

discrete
inherent

minority,
personal
21

but

certainly

characteristics

it

is
nor

traditionally the subject of special protection under the Equal
Protection Clause.”)).

Neither the Supreme Court nor the First

Circuit

whether

has

undergird

a

addressed
claim

brought

a

“class

pursuant

(Pls.’ Obj. to Chariho Mot. 60-61.)

to

of
42

one”
U.S.C.

theory
§

can

1985(3).

And Plaintiff neglects to

cite a single case – from any court - to support the idea that
such a claim is cognizable.
at

399

(“Not

See Royal Oak Entm’t, 205 F. App’x

surprisingly,

Plaintiffs

provide

no

authority

whatsoever for this claim, and we reject it.”); see also Martone
Place, LLC v. City of Springfield, No. 16-cv-30170-MAP, 2017 WL
5889222,

at

(dismissing

*4,

*18-19,

conspiracy

*19

claim

n.19

(D.

premised

Mass.
on

Nov.

29,

class-of-one

2017)
theory

because “the complaint is devoid of allegations of ‘some racial,
or

perhaps

otherwise

class-based,

invidiously

discriminatory

animus’” (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.
1996))).
Furthermore, the aspect of Plaintiff’s claim pertaining to
the

Due

process

Process
claim

conspiracy

to

Clause

violate

fail

That

fails.

must

is,

her

because

the

Plaintiff

constitutional

cannot
rights

plausible violation of those underlying rights.
Tripp

Cty.,

[plaintiff]

664
has

F.3d

1173,

not

1180

(8th

adequately
22

Cir.
shown

underlying

due

allege

a

without

a

See Novotny v.

2011)

(“[B]ecause

any

underlying

constitutional violations, his civil conspiracy claim must also
fail.” (citation omitted)); Sow v. Fortville Police Dep’t, 636
F.3d 293, 305 (7th Cir. 2011) (“[T]he absence of any underlying
violation

of

Plaintiff’s

rights

on

a

precludes

Plaintiff

succeeding

omitted)).

the

conspiracy

possibility

claim.”

of

(citation

Thus, Count III is dismissed.

4. Count XI
In

this

Count,

which

only

pertains

to

CRSD

and

the

Committee, Plaintiff alleges a failure to accommodate a person
with a disability in violation of Title II of the ADA, 42 U.S.C.
§ 12132 et seq., and Section 504 of the Rehabilitation Act, 29
U.S.C. § 794.
that

these

(Compl. 47.)

defendants

Specifically, Plaintiff alleges

unreasonably

denied

Plaintiff’s

request

for a reasonable accommodation to serve her suspension at home
rather

than

at

school,

because

of

her

alleged

disability.

(Compl. ¶¶ 359-60.)

Plaintiffs suggest K.Z. was disabled, with

conditions

CRSD

injury,

known

migraine

to

and

condition,

the

Committee

anxiety,

and

a

including
seizure

a

head

disorder.

(Id. ¶ 356.)
Plaintiff’s ADA claim falls short of stating a plausible
claim.

Insofar as Plaintiff asserts that her alleged disability

required her to serve her suspension at home rather than (oneday)

in-school,

the

ADA

and
23

Rehabilitation

Act

are

not

implicated.
89998,
claim

at

See Mason v. Bd. of Educ., No. WMN-10-3143, 2011 WL
*3

under

(D.

Md.

Title

Jan.

II

of

11,
the

2011)
ADA

(dismissing

and

Section

Plaintiffs’
504

of

the

Rehabilitation Act because “neither a five-day suspension nor an
in-school

detention

implicate[d]

the

protections

of

these

statutory provisions”) (citing Honig v. Doe, 484 U.S. 305, 325
(1988)).

Indeed, the Supreme Court in Honig accepted the stance

of the Department of Education’s Office for Civil Rights (“OCR”)
“that a suspension of up to 10 school-days does not amount to a
‘change

in

placement,’”

proscribed

by

the

precursor

to

the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400,
et seq.

484 U.S. at 325 n.8; see also Mason, 2011 WL 89998, at

*3; Mills v. Bd. of Educ., 348 F. Supp. 866, 880 (D.D.C. 1972)
(recognizing school officials could impose suspensions of shortterm, temporary durations and drawing line at “more than two
days”).

“The OCR, which is charged with enforcing § 504 and

Title II, has consistently concluded that a suspension of less
than

ten

placement’

days
or

does
a

not

denial

constitute
of

a

‘free

‘a

significant

appropriate

implicate the protection of these statutes.”

change

in

education’

to

Mason, 2011 WL

89998, at *3 (first citing OCR Staff Memorandum, 16 IDELR 491
(OCR Nov. 13, 1989); then citing Metro Nashville Pub. Sch., 28
IDELR 887 (OCR Dec. 19, 1997)).
24

Further, Plaintiff’s ADA claim fails because she neglects
to

describe

migraine

how

her

claimed

condition,

an

conditions,

anxiety

“a

condition,

head

injury,

and

a

a

seizure

disorder,” (Compl. ¶ 356), significantly limit one or more major
life

activities.

See

complaint

activities

U.S.C.

does

Plaintiff’s

42

not

substantially

limited

§

12102(1)(A).

identify
by

her

any

alleged

Because

major

life

impairments,

“[w]ithout pleading facts of how [her] major life activities
were limited, [Plaintiff] cannot state a sufficient claim . . .
under the ADA.”

Griffin v. Am. Zurich Ins. Co., 697 F. App’x

793, 797 (5th Cir. 2017); see also Lee v. Chi. Transit Auth.,
696 F. App’x 752, 753-54 (7th Cir. 2017) (affirming district
court’s

dismissal

‘parrot[ed]’

the

of

ADA

statutory

claim

where

definition

plaintiff

of

“merely

‘disability’”

and

“failed to allege how [his] conditions substantially limited a
major

life

Plaintiff

activity”
has

done

(first
here

-

alteration
that

is,

in

original)).

advance

What

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements” - does not suffice.
678 (citing Twombly, 550 U.S. at 555).
Count XI will be dismissed.

25

Iqbal, 556 U.S. at
Plaintiff’s claim in

C. Plaintiff’s State-Law Claims
1. Supplemental Jurisdiction
As

an

initial

matter,

the

Court

addresses

Plaintiff’s

Motion Requesting this Court To Take Supplemental Jurisdiction
of Count V and all State Law Claims and Notice of Voluntary
Dismissal

of

Supplemental

Family

Court

Appeal

(ECF

Jurisdiction”).

No.

51)

for

Motion

Plaintiff’s

(“Motion

for

Supplemental Jurisdiction is granted in part and denied in part
for the reasons that follow.
Specifically, the Court declines to exercise supplemental
jurisdiction with respect to Plaintiff’s administrative appeal
(Count V) and all state-law claims as they pertain to Defendant
McGinley (Counts VI, VII, VIII, and X).
As a general matter, “in any civil action of which the
district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.”
§

1367(a).

under

§

discretion

However,

1367(a),
to

jurisdiction.”

even

assuming

“Section

1367(c)

decide

whether

it

supplemental
gives

should

a

28 U.S.C.

jurisdiction

district

exercise

court

supplemental

Legion Ins. Co. v. Family Serv., Inc., 561 F.
26

Supp. 2d 232, 239 (D.R.I. 2008). “‘In making these decisions,
district

courts

including

must

examine

considerations

the

of

totality

‘comity,

convenience, fairness and the like.’”

of

circumstances,’

judicial

economy,

Id. (quoting Che v. Mass.

Bay Transp. Auth., 342 F.3d 31, 37 (1st Cir. 2003)).
First,

the

Court

declines

to

exercise

supplemental

jurisdiction as to Plaintiff’s administrative appeal (Count V).
This

claim

is

premised

on

Rhode

Island’s

Administrative

Procedures Act (“APA”), R.I. Gen. Laws § 42-35-15, (see Compl. ¶
19).

However,

the

APA

generally

does

not

permit

discovery;

instead review is “conducted by the court without a jury and
shall be confined to the record.”
15(f).
directed

See R.I. Gen. Laws § 42-35-

As a threshold matter, Count V of Plaintiff’s complaint,
solely

at

Defendants

Council

and

CRSD,

is

not

so

related to Plaintiff’s other claims to comprise part of the same
case

or

controversy.

principles

of

comity,

28

U.S.C.

judicial

§

1367(a).

economy,

against taking supplemental jurisdiction.
F. Supp. 2d at 239.

and

Additionally,
fairness

counsel

Legion Ins. Co., 561

Plaintiff’s discrete, no-discovery state-

court-administrative appeal of the Council’s decision is better
heard in state court.
Similarly, the Court is not convinced that it should take
supplemental jurisdiction over K.Z.’s claims against Defendant
27

McGinley

simply

originating

facts

“school-related”

because
as

they

broadly

Plaintiff’s

defendants,

claims

i.e.,

Plaintiff and Defendant McGinley.

the

flow

from

against

the

the

altercation

same

various
between

The Court is not inclined to

find that Plaintiff’s purely state-law claims against Defendant
McGinley, which solely arise from the events that occurred on
October 16, 2015, comprise part of the same constitutional case
as Plaintiff’s constitutional and state-law claims against all
other defendants, which entirely revolve around the way in which
these latter defendants responded to the alleged altercation.
None of Plaintiff’s allegations that relate to what she alleges
to be deficient process (i.e., the way in which the various
school-related defendants handled and reviewed her one-day inschool suspension) have anything to do with Defendant McGinley
(besides, of course, the fact that McGinley participated in the
original altercation, which the Court deems insufficient).
Plaintiff

brings

negligence,

the

same

intentional

types

infliction

of
of

That

state-law

claims

(i.e.,

emotional

distress,

and

defamation) against both McGinley and the other defendants does
not alter that conclusion.
supplemental

jurisdiction

§ 1367(c) counsels against taking
over

these

claims;

are best brought and decided in state court.”

instead,

Kando v. R.I. Bd.

of Elections, 254 F. Supp. 3d 335, 341 (D.R.I. 2017).
28

“[t]hey

The

Court

reaches

the

opposite

conclusion,

however,

and

retains jurisdiction over Plaintiff’s remaining state-law claims
as to all other Defendants.

The parties all agree that these

state-law claims are sufficiently intertwined with Plaintiff’s
federal constitutional claims.

See Roche v. John Hancock Mut.

Life Ins. Co., 81 F.3d 249, 256-57 (1st Cir. 1996) (citing 28
U.S.C.

§

1367(c)(3)).

Beyond

that,

these

particular

claims

“arise from the same nucleus of operative facts,” concerns for
“comity, judicial economy, and fairness” also support exercising
supplemental

jurisdiction.

Accordingly,

the

analysis

Id.
that

at

257

follows

(citations
considers

omitted).

Plaintiff’s

state-law claims in Counts IV, VII, VIII, IX, and X against the
defendants

implicated

by

those

claims

(except

McGinley,

as

discussed supra).
2. Plaintiff’s Remaining State-Law Claims
a. Count IV
On this score, Plaintiff alleges that Defendants 15 breached
a duty to act with reasonable care and to not conspire to harm
K.Z. by forming “an agreement for a common plan or design to
cause financial, physical and emotional harm to Plaintiff[].”
(Compl. ¶¶ 277-78.)

Without exclusive reliance on it, Plaintiff

15

The Defendants involved in this count are the same as
those involved in the 1985(3) claim (Count III).
29

incorporates

by

reference

the

allegations

with

respect

constitutional civil conspiracy under 42 U.S.C. § 1985.
279.)

Plaintiff

“policies,

again

customs,

blames,

patterns

without
and

identifying,

practices”

in

to

(Id. ¶
supposed

place

by

Defendants “that were the moving force in harming Plaintiff[].”
(Id. ¶ 286.)
This claim fails at its inception.
Rhode

Island

law,

“[r]ather

than

an

Under well-established
independent

source

of

liability, civil conspiracy is a vehicle for demonstrating joint
liability

for

distinct

tortious

behavior;

and,

as

such,

plaintiff must set forth ‘a valid underlying intentional tort
theory.’”

Bainum v. Coventry Police Dep’t, 156 A.3d 418, 421

(R.I. 2017) (quoting Read & Lundy, Inc. v. Washington Trust Co.
of Westerly, 840 A.2d 1099, 1102 (R.I. 2004)).

And, remarkably,

in all the hundreds of pages Plaintiff filed with this Court,
she

does

not

identify

conspiracy claim.

a

specific

tort

that

underlies

her

(See, e.g., Compl. ¶¶ 276-87; Pls.’ Obj. to

Chariho Mot. 75-76; Mem. in Supp. of Pls.’ Obj. to Def. Jon
Anderson’s Mot. To Dismiss 79-80); Kawaauhau v. Geiger, 523 U.S.
57, 61-62 (1998) (“‘[I]ntentional torts,’ as distinguished from
negligent or reckless torts . . . generally require that the
actor intend ‘the consequences of an act,’ not simply ‘the act

30

itself.’” (quoting Restatement (Second) of Torts § 8A, Comment
a, p. 15 (1964))).
b. Count VII
Plaintiff

next

alleges

the

intentional

infliction

of

emotional distress (“IIED”) by Defendants Ricci, CRSD, Bridgham,
Weber,

Attorney

“Defendants’

Anderson,

and

their

and

Louzon.

agents’

Plaintiff

intentional

and/or

avers,
reckless

conduct of accusations about Plaintiff K.Z.’s unlawful behavior,
assignment of discipline for ‘instigating a fight’ when the act
was an unprovoked assault with Plaintiff K.Z. as the victim with
pre-determined

discipline,

and

the

outrageous

defense

of

the

unjustified discipline through four levels of corrupted appeals”
constitutes “extreme and outrageous conduct beyond all bounds of
decency

and

(Compl.

¶

utterly

309.)

caused

in

Plaintiff

Plaintiffs

itself

intolerable

“severe

physical

in

broadly

emotional

injury,

a

civilized

alleges

in

that

Defendants

which

distress

resulting

community.”

manifested

damages

from

the

distress, physical discomfort, inconvenience, illness, injury,
medical expenses, loss of reputation, and loss of wages.”

(Id.

¶ 311.)
Plaintiff’s
inter

alia,

outrageous.”

allegations

that

the

do

not

alleged

suffice.

conduct

is

IIED

requires,

“extreme

and

See Forbes v. R.I. Bhd. of Corr. Officers, 923 F.
31

Supp. 315, 329 (D.R.I. 1996) (citing Champlin v. Washington Tr.
Co., 478 A.2d 985, 989 (R.I. 1984)).

The answer to whether the

conduct as alleged is “extreme and outrageous,” a question of
law, see Fudge v. Penthouse Int’l, Ltd., 840 F.2d 1012, 1021
(1st Cir. 1988), is a resounding no.

Even if the Court accepts

as true the proposition that all Plaintiff did was spray silly
string

into

the

air

indiscriminately

during

Spirit

Week

celebrations, and that she was disciplined with a one-day, inschool

suspension,

there

is

no

world

considered extreme and outrageous conduct.

where

this

would

be

Instead, “while the

conduct complained of may have given offense to plaintiff[] and
to other members of [her] community, it would be a far stretch
for [the Court] to characterize it as so extreme and outrageous
as

to

be

community.”

atrocious

and

utterly

intolerable

in

a

civilized

Swerdlick v. Koch, 721 A.2d 849, 863 (R.I. 1998). 16

Plaintiff’s Count VII claim is dismissed.

16

Although the Court disposes of Plaintiff’s claim on this
narrow ground, it acknowledges that Plaintiff’s claim is
deficient for several other reasons, including failing to
satisfy even Rule 8’s low, pleading bar.
Indeed, as is more
often than not true with Plaintiff’s complaint, she merely
parrots the elements of IIED without alleging sufficient factual
conduct to plausibly allege a cause of action.
32

c. Counts VIII
On

this

allegations

score,

against

Plaintiff

Defendants

lodges

Ricci,

plethora

CRSD,

negligence

Bridgham,

Louzon, the Committee, and Attorney Anderson.

Weber,

Plaintiff’s claim

in this respect fails for it cannot demonstrate – even to the
standard of mere plausibility – a necessary prerequisite to a
negligence

claim:

causation.

See

Russian

v.

Life-Cap

Tire

Servs., Inc., 608 A.2d 1145, 1147 (R.I. 1992).
Here, twelve of the seventeen allegations devoted to this
claim

detail

Plaintiff.

various

duties

that

Defendants

(See Compl. ¶¶ 316-27.)

allegedly

owed

The Court need not opine on

whether such duties are cognizable, however, because Plaintiff’s
causation allegations (or lack thereof) are fatal to Count VIII.
Indeed,

all

announcement

Plaintiff
that,

offers

“[a]s

a

on

this

direct

score

and

is

a

conclusory

proximate

result

of

Defendants’ acts and omissions, Plaintiffs were harmed by the
breach

of

damages.”

the

standard

of

(Compl. ¶ 329.)

care

and

suffered

the

aforesaid

Without belaboring the point, “[n]ot

only has Plaintiff failed to plead the element[] . . . with any
specific
epitome

facts,
of

but

Plaintiff’s

conclusory

[causation]

allegations.”

claims

Picard

v.

are

the

City

of

Woonsocket, No. 09-318 S, 2010 WL 2134106, at *5 (D.R.I. May 27,
2010).

Because

Plaintiff

has

not

33

“nudged

[her]

claim[]”

of

negligence “across the line from conceivable to plausible,” it
necessarily fails.

Twombly, 550 U.S. at 570.

d. Count IX
For

many

Plaintiff

of

the

suggests

same

that

reasons

outlined

Defendants

in

Ricci,

Count

CRSD,

VIII,

and

the

Committee breached its duty of care to hire, train, supervise,
and

retain

competent,

properly

employees,

servants,

agents

Plaintiff’s

Count

IX

claim

fundamental way, though:

qualified,
and/or

and

well-performing

contractors

resembles

Count

VIII

at
in

CHS.

a

more

it, too, does not approach the mark

for stating a plausible claim.
Plaintiff’s complaint suffers from an express flaw in that
it

alleges

that

“Defendants

are

vicariously

responsible

and

responsible for the acts and omissions of the Defendants’ agents
under the theory of respondeat superior.”

(Compl. ¶ 338.)

under

the

Rhode

Island

employees

is

not

superior,

but

on

law,

premised
a

employer . . . .”
(D.R.I.

1999).

“liability
on

separate

the

for

harmful

doctrine

affirmative

of

duty

Yet,

acts

of

respondeat

owed

by

the

Liu v. Striuli, 36 F. Supp. 2d 452, 467

Indeed,

the

Rhode

Island

Supreme

Court

has

unambiguously pronounced, “[T]he liability of an employer in the
negligent

supervision

or

hiring

of

an

unfit

employee

is

an

entirely separate and distinct basis from the liability of an
34

employer under the doctrine of respondeat superior.”

Mainella

v. Staff Builders Indus. Servs., Inc., 608 A.2d 1141, 1145 (R.I.
1992).

As a matter of law, Count IX fails to state a claim.
e. Count X

Here, Plaintiff alleges that “Defendants and their agents
published

and

republished,

orally

and/or

in

writing,

false

statements that Plaintiff K.Z. sprayed Defendant McGinley ‘in
the face’ with silly string, called Defendants McGinley a ‘bitch
before’ spraying silly string, that K.Z. ‘instigated a fight,’
and

that

K.Z.

conduct,’ . . . .”

committed

the

crime

of

‘disorderly

(Compl. ¶ 340.)

Like so many others, Plaintiff’s claim for defamation per
se does not get off the ground.
that

“the

criminal

false
offense,

statement
(2)

a

Defamation per se necessitates

must

impute

loathsome

to

the

disease,

other:
(3)

a

(1)

a

matter

incompatible with his business, trade, profession, or office, or
(4) a serious sexual misconduct.”

Marcil v. Kells, 936 A.2d

208, 212 (R.I. 2007).
As to most of Plaintiff’s allegations, the Court’s inquiry
is straightforward because, as a matter of law, spraying silly
string, describing a classmate as a “bitch,” and stating that
K.Z. “instigated a fight” do not amount to a criminal offense,
loathsome disease, business smear, or serious sexual misconduct.
35

Cf.

id.

at

213.

The

only

remaining

factual

averment,

that

Defendants falsely stated K.Z. could be arrested for “disorderly
conduct,” comes a little closer to alleging a plausible claim.
But, even assuming it states a claim, 17 it is barred by the
statute of limitations.

The only specific allegation the Court

can glean from Plaintiff’s complaint that references “disorderly
conduct” concerns oral communications on October 21, 2015.
Compl.

¶¶

138-40.)

However,

the

applicable

statute

(See
of

limitations for slander – one year “after the words are spoken”
– precludes such a claim because Plaintiff filed the complaint
on June 6, 2017, well beyond one year from October 21.

See

Francis v. Gallo, 59 A.3d 69, 71 (R.I. 2013) (citing R.I. Gen.
Laws § 9-1-14(a)).
Beyond
their

this,

agents

writing,

published

false

“innumerable

Plaintiff’s
and

statement

republished,

statements”

times”

is

that

to

nothing

than

defendant-unlawfully-harmed-me accusation.”
678.

Plaintiff’s

“naked

assertion[s]”

factual enhancement” cannot survive.
550 U.S. at 557).

orally

unnamed

more

“Defendants
and/or

“third
“an

and
in

parties”

unadorned,

the

Iqbal, 556 U.S. at
that

lack

“further

See id. (quoting Twombly,

Count X is dismissed.

17

The Court is not convinced that a statement that K.Z.
engaged in “disorderly conduct” can form the basis for a claim
for defamation per se in any event.
36

IV. Conclusion
This

case

brings

to

mind

the

timeless

words

of

William

Shakespeare that “brevity is the soul of wit, [a]nd tediousness
the limbs and outward flourishes.” 18

Plaintiff has filed in

excess of 500 pages with this Court, much of which has been
repetitive and indeed duplicative, forcing the Court to wade
through mountains of irrelevant and tedious material in search
of some meritorious claim or argument. 19

Indeed, it is as if

counsel for Plaintiff believes that if she buries the Court in
paper, it will just give up and kick the can down the road.
Although

the

Court

could

venture

to

discuss

the

many

additional flaws in Plaintiff’s pleading, it is mindful of the
words of Chief Justice Roberts that, the above-stated reasons
are

“sufficient

cardinal

ground[s]

principle

of

for

deciding

judicial

this

restraint

—

case,
if

it

and

the

is

not

necessary to decide more, it is necessary not to decide more —
counsels us to go no further.”

PDK Labs. Inc. v. U.S. D.E.A.,

362 F.3d 786, 799 (D.C. Cir. 2004).

18

William Shakespeare, Hamlet act 2, sc. 2.

19

This includes three separate versions of a forty-nine
page, 363 paragraph complaint, and 421 pages of memoranda in
support of her objections to various motions to dismiss.
Throughout her submissions, Plaintiff simply copies and pastes
sections of previous responses, or modifies them slightly.
37

One question remains:
to amend her complaint.

whether Plaintiff should be allowed
The answer is a resounding no.

This

case, which has been appropriately described as a “teen drama
masquerading as a federal lawsuit” 20 has gone on long enough:
After reviewing the history and dispositions of the
prior litigation as well as the pleadings, [and]
memoranda . . . in the instant litigation, the Court
concludes that providing Plaintiff with an opportunity
to amend [her] complaint would be futile. The bottom
line is that the Complaint is completely lacking in
merit; is filled with inventive and hyperbole, not
actionable facts; and has taxed the resources of
Defendants and this Court beyond reason.
Enough is
enough.
Bogosian v. R.I. Airport Corp., No. 17-016 S, 2017 WL 2954536,
at *2 (D.R.I. July 11, 2017). 21
Therefore, the Court GRANTS with prejudice the following
motions:

RIDE

Defendants’

Motion

To

Dismiss

(ECF

No.

12),

Council Defendants’ Motion To Dismiss (ECF No. 14), Anderson’s
Motion To Dismiss (ECF No. 22); and Chariho Defendants’ Motion

20

(Mem. in Supp. Def. Anderson Mot. To Dismiss 2.)

21

The Court notes that certain Defendants have moved for
sanctions because of the excessive and arguably frivolous
filings of Plaintiff.
(Defs.’ Ryan Bridgham, Laurie Weber, &
Crait Louzon’s Mot. for Rule 11 Sanctions, ECF No. 67; Def.
Barry Ricci’s Mot. for Rule 11 Sanctions Against Pls.’ Counsel,
Att’y Paige Munro-Delotto, ECF No. 68.)
This is a close call.
The Court will exercise its discretion and deny those motions,
but sternly warns Plaintiff’s counsel that she should heed the
advice and counsel herein and failure to do so will be addressed
appropriately.
38

To Dismiss (ECF No. 27).
(1)

DISMISSES

with

To that end, the Court:
prejudice

Plaintiff’s

federal

claims.

Count I and II are dismissed as to all Defendants (but
McGinley).
Ricci,

Count

CRSD,

Anderson.

III

is

Bridgham,

dismissed

Weber,

as

to

Louzon,

Defendants

and

Attorney

Count XI is dismissed as to Defendants CRSD

and the Committee.
(2)

GRANTS Plaintiff’s Motion for Supplemental Jurisdiction
(ECF No. 51) over Counts IV, VII, VIII, IX, and X as to
all

implicated

Defendants

but

McGinley.

DISMISSES those claims with prejudice.

The

Court

Counts IV and VII

are dismissed as to Defendants Ricci, CRSD, Bridgham,
Weber,

Louzon,

dismissed
Committee.

as

and
to

Attorney
each

of

Anderson.
those

Count

defendants

VIII
and

is
the

Count IX is dismissed as to Defendants Ricci,

CRSD, and the Committee.

And Count X is dismissed as to

all Defendants but McGinley.
(3)

DENIES Plaintiff’s Motion for Supplemental Jurisdiction
(ECF No. 51) and declines to exercise jurisdiction over
Count V, and Counts VI, VII, VIII, X as to Defendant
McGinley.

Accordingly, those claims are DISMISSED and

Defendant McGinley’s Motion To Dismiss (ECF No. 26) is
GRANTED without prejudice.
39

(4)

The Court DENIES Plaintiff’s request for leave of court
to amend her Complaint.

(5)

Finally, Defendants Bridgham, Weber, and Louzon’s Motion
for Rule 11 Sanctions (ECF No. 67) and Defendant Ricci’s
Motion for Rule 11 Sanctions (ECF No. 68) are DENIED.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: March 30, 2018

40