G.M. et al v. BRIGANTINE PUBLIC SCHOOLS et al, No. 1:2014cv04606 - Document 18 (D.N.J. 2015)
Court Description: MEMORANDUM OPINION & ORDER Denying 5 Motion to Dismiss. Signed by Judge Joseph H. Rodriguez on 6/8/15. (js)
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G.M. et al v. BRIGANTINE PUBLIC SCHOOLS et al Doc. 18 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY G.M. & M.C.M., on behalf of them selves : and their m inor sons, C.M. & D.M., Plaintiffs, v. : Hon. J oseph H. Rodriguez Civil Action No. 14-460 6 : BRIGANTINE PUBLIC SCHOOLS, Defendants. : MEMORANDUM OPINION & ORDER : This m atter is before the Court on Defendant Brigantine Public Schools’ Motion to Dism iss [5]. The Court has reviewed the subm issions of the parties and heard oral argum ent on the m otion on April 21, 20 15. For the reasons set forth below, the m otion will be denied. Backgro u n d Plaintiffs G.M. and M.C.M. are the parents of a disabled ten-year old son, C.M., who was enrolled at the Brigantine Elem entary School within the Defendant School District. Essentially, Plaintiffs allege that Defendant discrim inatorily retaliated again st Plaintiffs and their son s 1 for requesting that Defendant provide C.M. with a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act, 20 U.S.C. § 140 0 (“IDEA”) an d after (a) M.C.M. exercised her right to speak at public m eetings of the Defendant’s Board of Education and (b) Plaintiffs challenged the Board of Education in adm in istrative legal proceedin gs. (Com pl., ¶ 1.) Besides citing the IDEA, Plaintiffs assert violations of Section 50 4 of the Rehabilitation 1 D.M. is C.M.’s eleven year-old brother who was a student at Brigantine Middle School during the relevant tim e period. (Com pl., ¶ 9.) 1 Dockets.Justia.com Act, 29 U.S.C. § 791, Title II of the Am ericans with Disabilities Act, 42 U.S.C. § 12131 (“ADA”), and the New J ersey Law Again st Discrim ination, N.J . Stat. Ann. § 10 :5-1 (“NJ LAD”). Plaintiffs contend, on the face of the Com plaint, that they are not required to exhaust adm inistrative rem edies because they seek only com pen satory dam ages and do not claim that the retaliation and discrim inatory acts alleged had an adverse im pact upon C.M.’s education al program m ing. (Com pl., ¶ 4.) In an effort to com ply with the applicable statutes of lim itation, however, Plaintiffs sim ultaneously pursued claim s in the New J ersey Office of Adm inistrative Law. (Id.) The facts as alleged in the Com plaint are as follows. In October 20 0 6, C.M. began attending Atlantic County Special Services School District (“ACSSSD”) pursuant to an IEP written by Defendant. At the IEP m eeting for this placem ent, and all subsequent IEP m eetings, G.M. and M.C.M. requested that Defendant provide C.M. with a one-to-one aide for his pre-school program m ing. Defendant den ied this request. (Com pl., ¶ 13.) In Decem ber 20 0 6, C.M. dislocated his hip for the first tim e and was placed in a hip brace. (Com pl., ¶ 14.) In May, 20 10 , then-Superintendent Dr. Robert Previti and District Child Study Team Supervisor Glick created a program within the Defendant District and invited C.M. to attend. G.M. and M.C.M. agreed, as C.M. had an approxim ately 90 m inute bus ride to ACSSSD and had been in two bus accidents. (Com pl., ¶ 15.) On May 6, 20 11, C.M. underwent a procedure to correct his hip problem which required that he rem ain in a cast for eight weeks. (Com pl., ¶ 16.) On J anuary 14, 20 12, C.M.’s hip again dislocated. M.C.M. m ade a request to Previti and Glick that the District provide C.M. a perm anent one-to-one aide, given his tendency to suffer hip 2 dislocation. (Com pl., ¶ 17.) In response, the District offered a one-to-one aide for four to six weeks, the tim e C.M. was expected to be in his brace. (Com pl., ¶ 18.) On February 2, 20 12, the m em bers of C.M.’s Individualized Education Program team (the “IEP Team ”) m et to discuss C.M.’s IEP. Special Education Advocate Susan Coll-Guedes attended with M.C.M. (Com pl., ¶ 19.) At that m eeting, M.C.M. requested a perm anent one-to-one aide, but that request was denied. (Com pl., ¶ 20 .) On March 1, 20 12, M.C.M. subm itted a letter from C.M.’s fam ily physician stating that C.M. requires a perm anent one-to-on e aide for m edical reasons. In response, Glick stated that the school would need its doctor to approve the one-to-one aide. (Com pl., ¶ 21.) On March 7, 20 12, Defendant approved a perm anent one-to-one aide for C.M. M.C.M. expressed her concern to CST Supervisor Glick that the aide provided was not physically capable of perform ing the duties required. (Com pl., ¶ 22.) On March 8 , 20 12, C.M., while in Brigantine Elem entary, again dislocated his hip. (Com pl., ¶ 23.) On March 22, 20 12, M.C.M. notified the IEP Team that she would not waive her right under federal law to have all of C.M.’s treating therapists attend his IEP m eeting, scheduled for April 24, 20 12. (Com pl., ¶ 24-25.) At that IEP m eeting, M.C.M. requested additional speech therapy, additional occupational therapy, an d a continuous school year for C.M.; these requests were den ied. (Com pl., ¶ 25.) On May 10 , 20 12, M.C.M. subm itted a letter from C.M.’s fam ily physician and a behavioral specialist requesting that C.M. be enrolled in a continuous school year. (Com pl., ¶ 26.) On May 15, 20 12, M.C.M. attended a Board of Education m eeting, with C.M. She introduced herself and C.M. to the Board and noted that she was considering filing a due process com plaint. At that m eeting, she discussed in detail her concerns regarding the inappropriate educational program m ing her son was receiving and C.M.’s needs. 3 (Com pl., ¶ 27.) On J une 10 , 20 12, M.C.M. and G.M. filed for a due process hearing, and subm itted a letter to the BOE listing specific requests for C.M. The due process com plaint alleged that the Defendant District had failed to offer C.M. a FAPE. (Com pl., ¶ 28 .) On J une 28, 20 12, M.C.M. attended a Board m eeting an d provided Board m em bers with a list of C.M.’s needs she hoped Defendant would address as a result of the due process filing. Previti stated at a BOE m eeting that he felt there would be a resolution of the dispute between Defendant and Plaintiffs. (Com pl., ¶ 29.) On J uly 19, 20 12, the parties convened a resolution m eeting. Defendant offered to enroll C.M. in a continuous school year and provide an additional 1/ 2-hour per week of speech and occupational therapy services. Defendant, however, refused to provide Applied Behavioral Analysis (“ABA”) services. Dissatisfied with this result, M.C.M. contacted the New J ersey Departm ent of Education, requesting m ediation for the purpose of securing additional services for C.M. (Com pl., ¶ 30 .) The last day of C.M.’s extended school year program m ing was J uly 20 , 20 12. (Com pl., ¶ 37.) On Friday, J uly 27, 20 12, M.C.M. received a letter from the New J ersey Departm ent of Education providing a m ediation date. On Monday, J uly 30 , 20 12 at 9 a.m ., the New J ersey Departm ent of Youth Fam ily Services (“DYFS”), now called “Child Protection and Perm anency,” a division of the State of New J ersey’s Departm ent of Children and Fam ilies, responsible for investigating allegations of child abuse and neglect, received a telephone call which reported: a. C.M. had “cerebral palsy or som ething”; b. C.M. and D.M. were so filthy that the com plainant had to bathe them ; c. C.M. had bloody an d raw genitals; d. C.M. and D.M. were locked in their room s by M.C.M. and G.M.; 4 e. The fam ily hom e was filthy; and f. C.M. and D.M. had rashes on their skin that appeared to be from bedbugs. (Com pl., ¶ 32.) Also on J uly 30 , 20 12, at about noon, M.C.M. received a telephone call from Child Study Team Supervisor Glick requesting a date on which C.M. could be provided an Occupational Therapy evaluation. (Com pl., ¶ 34.) Two representatives from DYFS arrived at Plaintiffs’ hom e at approxim ately 2:30 p.m . on J uly 30 , 20 12. (Com pl., ¶ 35.) At the tim e of the DYFS visit, besides the fam ily, a visiting adult, two visiting children and a speech therapist were present. M.C.M. was extrem ely upset. (Com pl., ¶ 36.) During that visit, the DYFS representatives: (a) indicated that the caller who reported the fam ily had stated that C.M. m ight have “cerebral palsy” or som ething. M.C.M. explained that C.M. has Down syndrom e, is autistic, has a hip brace, exhibits behavioral issues, and wears diapers. The DYFS representative told M.C.M. that the caller had not inform ed DYFS of these facts; (b) observed M.C.M. changing C.M.’s diapers and reviewed his genitalia and skin condition, noting that there was nothing of concern; (c) inspected the entire house, excluding the third floor; (d) told M.C.M. that DYFS had received the call at 9 a.m . that day; (e) would not reveal the identity of the caller; (f) reviewed a letter related to the special education m ediation presented by M.C.M.; and (g) rem ain ed in the hom e for approxim ately on e and one-half hours. (Com pl. ¶ 36.) Within three days of the DYFS visit, CST Supervisor Glick telephoned M.C.M. stating that DYFS had requested records for C.M. and his siblings, stating: “I hope you don’t think we would call them on you.” (Com pl., ¶ 38.) On August 16, 20 12, the parties engaged in m ediation. Defendant agreed to provide C.M. with ABA services an d additional evaluations. (Com pl., ¶ 39.) On the first day of school, DYFS returned to Plaintiffs’ hom e for a second unannounced visit. The 5 DYFS representative spoke briefly to D.M. M.C.M. expressed her concern that DYFS’ presen ce would ruin the first day of school for her sons. (Com pl.,¶ 40 .) On October 8 , 20 12, C.M. was diagnosed with Celiac disease. M.C.M. sent a letter to CST Supervisor Glick and Superinten dent Previti notifying them of this diagnosis for C.M. She requested that they m ake a gluten free diet available at school, but received no response. (Com pl., ¶ 42.) On Novem ber 16, 20 12, M.C.M. learned that Celiac disease can cause skin rashes that resem ble bedbug bites, and notified DYFS. (Com pl., ¶ 44.) On Wednesday, Novem ber 21, 20 12, at approxim ately 8 p.m . on Thanksgiving eve, DYFS arrived for an unannounced third visit. M.C.M. explained that C.M. had a new diagnosis of Celiac disease. (Com pl., ¶ 45.) On Decem ber 17, 20 12, DYFS closed its case, finding no support for the accusations of abuse. (Com pl., ¶ 46.) On Decem ber 18, 20 12, M.C.M. attended a m eeting of the Board of Education to inquire about the hirin g of Brigantine’s new Superintendent. She questioned why it was taking so long to find a perm anent Superintendent. The interim Superintendent, Dr. Previti, becam e irate with her and accused her of questioning his job perform ance. (Com pl., ¶ 47.) On J anuary 18, 20 13, C.M. again dislocated his hip while at school. (Com pl., ¶ 48.) On Monday, February 4, 20 13, the school nurse notified M.C.M. that C.M. had an ear infection. M.C.M. and the nurse discussed at length C.M.’s condition, including that she was treating his infection with drops, that he had ear tubes that m ay have been infected, and that persons with Down syndrom e are m ore prone to ear infection than persons without Down syndrom e because they have sm aller ear canals in which fluid can build. M.C.M. explained that she had scheduled a post-operative appointm ent with C.M.’s surgeon at the Children’s Hospital of Philadelphia (“CHOP”) for February 20 , 6 20 13, adding that she was treating the ear condition. She stated that she did not wish to take C.M. to another doctor at that tim e and risk aggravating his hip injury. (Com pl., ¶ 49.) On Tuesday, February 19, 20 13, m ore than two weeks after M.C.M.’s February 4, 20 13 conversation with the school nurse, but just one day before C.M.’s scheduled doctor visit at CHOP, DYFS received another call from the school. The com plainant noted C.M.’s ear infection and alleged that she detected an odor on C.M. (Com pl., ¶ 50 .) Later on February 19, 20 13, a worker from DYFS arrived at the school. When the DYFS em ployee arrived, she was asked to wait in conference room by the m ain office. The school notified its school counselor, Ms. Christine Barron, to attend to the DYFS worker. (Com pl., ¶ 51.) Ms. Barron inform ed the school Principal, Don Marrandino, that DYFS was there for C.M. (Com pl., ¶ 52.) Ms. Barron requested that that the m ain office secretary call C.M.’s classroom to have him report to the office. C.M. was then escorted by a one-to-one aide through the m ain office area of the elem entary school. (Com pl., ¶ 53.) Later on February 19, 20 13, the District led the DYFS worker to the m iddle school to speak with D.M. D.M. was called to the office to m eet with the DYFS worker, who was there for approxim ately five m inutes. The DYFS worker questioned D.M. in a room with an open door, while two District em ployees rem ained just outside the room . (Com pl., ¶ 54.) At approxim ately 2:30 p.m . on February 19, 20 13, the DYFS worker visited M.C.M. at hom e. M.C.M. was distraught and im m ediately asked “where are m y kids?” The DYFS worker explained that she had been called because C.M. had an ear infection. M.C.M. explained C.M.’s vulnerability to such infections and that the school nurse, teacher and aide were well aware of this situation. M.C.M. showed the DYFS em ployee 7 C.M.’s com m unication book, which had entries corroborating that school personnel knew that C.M. had an ENT appointm ent the following day. The DYFS representative would not provide a nam e, but did tell M.C.M. that som eone from Brigantine School District had reported the fam ily. After approxim ately an hour, the DYFS worker left. (Com pl., ¶ 55.) On March 20 , 20 13, one m onth after the second phone call, DYFS again determ ined that the District’s com plaint was unfounded. (Com pl., ¶ 56.) On February 20 , 20 13, M.C.M. requested that C.M. be transferred to a county special services school. He has not sin ce returned to Brigantine Elem entary, and is currently enrolled in Atlantic County Special Services School District. (Com pl., ¶ 57.) In October of 20 13, C.M.’s speech therapist indicated that he had regressed and lost skills, probably due to environm ental change. (Com pl., ¶ 58.) Plaintiffs also allege that they have suffered severe em otional distress and m ental anguish. (Com pl., ¶¶ 59-63.) On J uly 22, 20 14, Plaintiffs filed the Com plaint in this m atter. Count I, brought pursuant to 42 U.S.C. § 1983, seeks com pen satory and punitive dam ages for retaliation in violation of the First and Fourteenth Am en dm ents by individual J ohn Doe Defendants who reported G.M. and M.C.M. to DYFS with unfounded accusations of abuse or neglect and by others who acquiesced in this alleged retaliation or inadequately trained the Defendant’s em ployees to refrain from m aking such retaliatory reports. Count II seeks com pen satory dam ages from the Defendant School District for retaliation in violation of Section 50 4 of the Rehabilitation Act of 1973 and the ADA by Defendant’s em ployees falsely reporting G.M. and M.C.M. to DYFS in retaliation for their advocacy on behalf of their child. Count III alleges that the Defendant District violated NJ LAD by denying C.M. an education equivalent to that received by students without disabilities. Count IV alleges retaliation by the Defen dant District in violation of the NJ LAD. Count 8 V alleges that J ohn Doe Defendants aided and abetted retaliation in violation of the NJ LAD. Count VI alleges that J ohn Doe Defendants aided and abetted discrim ination against C.M. in violation of the NJ LAD. Count VII alleges invasion of C.M.’s privacy by J ohn Doe Defendants in that DYFS was com pelled to inspect C.M.’s genitals by the false reports. Count VIII alleges invasion of Plaintiffs’ privacy by J ohn Doe Defendants by placing Plaintiffs in a false light. Defendant has brought a m otion to dism iss the Com plaint, arguing that Plaintiffs have not exhausted their adm inistrative rem edies as to the first six claim s, and that Counts VII and VIII do not im plicate the District. Plaintiffs oppose the m otion to dism iss an d seek to am end their Com plaint to indicate that they pursued an action in the New J ersey Office of Adm inistrative Law and reached a settlem ent there on Decem ber 1, 20 14. Plaintiffs also argue that their NJ LAD claim s are not subject to the adm in istrative exhaustion requirem ent. In reply, Defendant argues that Plaintiffs’ IDEA based claim s have been rendered m oot. Stan d ard A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. 2 See Chester County Interm ediate Unit v. Pa. Blue Shield, 8 96 F.2d 8 0 8, 2 “Although a district court m ay not consider m atters extraneous to the pleadings, a docum ent integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for sum m ary judgm ent.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). 9 8 12 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). “A claim has facial plausibility 3 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (20 0 9) (citing Twom bly, 550 U.S. at 556). “When there are well-pleaded factual allegations, a court should assum e their veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief.” Iqbal, 556 U.S. at 680 . The Court need not accept “‘unsupported conclusions and unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and “[l]egal conclusions m ade in the guise of factual allegations . . . are given no presum ption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to dism iss.”)). Accord Iqbal, 556 This plausibility standard requires m ore than a m ere possibility that unlawful conduct has occurred. “When a com plaint pleads facts that are ‘m erely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlem ent to relief.’’” Id. 3 10 U.S. at 679 (finding that pleadings that are n o m ore than conclusions are not entitled to the assum ption of truth). Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief requires m ore than labels and con clusions, an d a form ulaic recitation of a cause of action’s elem ents will not do.” Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elem ents of a cause of action, supported by m ere conclusory statem ents, do not suffice.”). Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are “enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact).” Twom bly, 550 U.S. at 556 (internal citations om itted). “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). An alys is Plaintiffs allege that the Defendant and its em ployees discrim inated and retaliated against them for requesting that the Defendant provide C.M. with a FAPE under the IDEA. As such, Plaintiffs’ claim s are subject to the IDEA’s adm in istrative exhaustion requirem ent. See Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266 (3d Cir. 20 14) (“retaliation claim s related to the enforcem ent of rights under the IDEA m ust be exhausted before a court m ay assert subject m atter jurisdiction”). Plaintiffs have argued that they actually have exhausted their adm inistrative rem edies, and they seek to am end the Com plaint solely to indicate such. They have 11 provided the Court with the OAL Decision Approving Settlem ent, dated Decem ber 1, 20 14, which states: The parties have resolved all issues in controversy that are within the jurisdiction of the Office of Adm inistrative Law. The retaliation claim s for violation of the First and Fourteenth Am endm ents, as enforced by 42 U.S.C. § 1983, Section 50 4 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title II of the Am ericans with Disabilities Act, 42 U.S.C. § 1220 3 that petitioners raised seek rem edies not available in the OAL. Indeed, the Settlem ent Agreem ent itself, attached to the Decision, states: Petitioners consent to the dism issal of the above-captioned m atter due to the Office of Adm in istrative Law’s lack of jurisdiction over the retaliation claim s asserted in the Petition, without prejudice to Petitioner’s retaliation claim s asserted in the United States District Court for the District of New J ersey, docketed at No. 14-cv-0 460 6-J HR-J S. Therefore, the m otion to dism iss for failure to exhaust adm in istrative rem edies m ust be denied. Further, insofar as Defendant requests dism issal of Counts VII and VIII because they do not im plicate the District, the Court notes that Plaintiffs nam ed J ohn Doe(s) and/ or J ane Doe(s), therefore dism issal of the entirety of these Counts is not appropriate at this stage of the litigation. For these reasons, as well as those expressed on the record during oral argum ent, IT IS ORDERED this 8 th day of J une, 20 15 that Defendant Brigantine Public Schools’ Motion to Dism iss [5] is hereby DENIED. s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 12
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