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HEDGES v. MUSCO

January 26, 1999

DANA HEDGES AND GEORGE HEDGES, ON BEHALF OF C.D., A MINOR, PLAINTIFFS,
v.
RALPH MUSCO, INDIVIDUALLY AND AS PRINCIPAL OF NORTHERN HIGHLANDS HIGH SCHOOL; GREG MCDONALD; CATHY KIELY; NORTHERN HIGHLANDS REGIONAL HIGH SCHOOL BOARD OF EDUCATION; ALAN GEISENHEIMER, INDIVIDUALLY AND AS PRESIDENT AND A MEMBER OF THE NORTHERN HIGHLANDS REGIONAL HIGH SCHOOL BOARD OF EDUCATION; WILLIAM BEISSWANGER, INDIVIDUALLY AND AS PRESIDENT AND A MEMBER OF THE NORTHERN HIGHLANDS REGIONAL HIGH SCHOOL BOARD OF EDUCATION; MARY LAURENT; BARCLAY BLAYMAN; HAROLD DENIEAR; LYNETTE KRUGER; PATRICIA DUBIE; LINDA KEMPEY; NORA OLIVER; TINA MALIZIA; AND AS MEMBERS OF THE NORTHERN HIGH SCHOOL BOARD OF EDUCATION; URGENT CARE-WALDWICK; HEALTH NET MEDICAL GROUP; AND BARBARA NEWMAN, DEFENDANTS.



The opinion of the court was delivered by: Greenaway, District Judge.

    OPINION

This matter comes before the Court on the motion for summary judgment of Defendants Ralph Musco, Greg McDonald, Cathy Kiely, Northern Highlands Regional High School Board of Education, Alan Geisenheimer, William Beisswanger, Mary Laurent, Barclay Blayman, Harold Deniear, Lynette Krueger, Patricia Dubie, Linda Kempey, Nora Oliver, Tina Malizia and Neal Strohmeyer (the "NHRHS Defendants"), Urgent Care-Waldwick, Health Net Medical Group and Barbara Neumann (incorrectly named in the Complaint as Barbara Newman) (the "Medical Defendants") (collectively "Defendants"). This Court must also resolve the cross-motion for summary judgment on Counts I, II, III and IV of Plaintiffs Dana and George Hedges ("Plaintiffs").*fn1

This is a civil rights action under 42 U.S.C. § 1983. Plaintiffs allege that the NHRHS Defendants subjected their daughter, a student at Northern Highlands Regional High School "NHRHS"), to an intrusive search including testing of bodily fluids, without reasonable suspicion, in violation of the Fourth and Fourteenth Amendments' protection against unreasonable searches and seizures. Plaintiffs further allege that Defendants disclosed the results of the search to NHRHS students in violation of their daughter's right to privacy under the Ninth and Fourteenth Amendments. Plaintiffs also assert a pendent state claim for assault and battery against the Medical Defendants. For the reasons set forth below, the Court shall (1) grant Defendants' motion for summary judgment; and (2) deny Plaintiffs' cross-motion for summary judgment on Counts I, II, III and IV.

FACTS

On April 8, 1996, Plaintiffs' daughter, Tara Hedges ("Tara") was a student at NHRHS enrolled in Defendant Greg McDonald's math class.*fn2 At approximately 9:18 a.m. on April 18, 1996, Tara entered Mr. McDonald's classroom for her third period math class. Mr. McDonald noticed that Tara's face was flushed and her eyes were glassy and red. Her pupils appeared very wide. Further, Tara seemed very talkative and outgoing even though she was usually quiet.

During math class, Tara obtained Mr. McDonald's permission to leave the room to go get a drink of water. The water fountain is located within view of Mr. McDonald's classroom door. However, Mr. McDonald observed Tara go in the opposite direction of the water fountain and disappear around the corner of the hallway. Mr. McDonald testified that it was not consistent with Tara's normal behavior to ask permission to go someplace and then leave the room to go elsewhere. McDonald Dep. at 43:3-7.

Tara was gone for approximately ten minutes*fn3 Based on Tara's appearance (the red and glassy eyes) and her uncharacteristic behavior, Mr. McDonald concluded that Tara might be "high", i.e., under the influence of drugs or alcohol.

The Northern Highlands Regional High School Board of Education's Revised Drug, Alcohol and Tobacco Policy ("NHRHS Policy" or "Policy") provides that:

  Any staff member to whom it appears that
  a pupil may be under the influence of
  alcoholic beverages or other drugs on
  school property or at a school function
  shall report the matter as soon as possible
  to the Principal or his/her designee. The
  substance abuse counselor and nurse shall
  be notified by the Principal/designee.

NHRHS Policy at 1, ¶ 1. In accordance with this Policy, Mr. McDonald contacted a school administrator to report his suspicion that Tara was high.

The NHRHS Policy further provides that the student suspected of being under the influence of drugs or alcohol "shall be escorted to the school nurse for an examination of any dangerous vital signs." Id. at 1, ¶ 2. At the end of the class period, a school security guard escorted Tara from Mr. McDonald's classroom to the nurse's office.

The school nurse, Defendant Cathy Kiely testified that her first impression of Tara when she saw her that day was "oh, my God, she looked so high. . . . She just looked totally out of it. She just didn't know where she was. Her eyes were red, they were glassy, she looked stuporous, she looked high [She had a] [b]lank look, staring into space, looking right through me, just out of it." Kiely Dep. at 20:17-21:3. Nurse Kiely informed Tara that she was suspected of being under the influence of drugs or alcohol and she would have to take her vital signs. Nurse Kiely checked Tara's vital signs and found that her blood pressure was elevated but her pulse and respirations were normal. Although Tara's eyes were bloodshot, her pupils were normal.

The school principal, Defendant Ralph Musco, came by Nurse Kiely's office and saw Tara. He noticed that Tara's eyes appeared red and glassy. He asked Tara why her eyes were so red and she explained that she had been crying.

The NHRHS Policy further provides that when a student is suspected of being under the influence of drugs or alcohol, "[t]he Principal/designee shall immediately notify a parent or guardian and the Superintendent and arrange for an immediate medical examination of the student." Id. at 1, ¶ 3. In accordance with the Policy, Nurse Kiely called Tara's father, Plaintiff George Hedges, and asked him to come to her office. When Mr. Hedges arrived, Nurse Kiely informed him that Tara was suspected of being under the influence of drugs or alcohol. Mr. Musco showed Mr. Hedges the pills they found in Tara's bookbag. Mr. Hedges took the pills stating that he would find out what they were.*fn5

Either Nurse Kiely or Mr. Musco told Mr. Hedges that Tara would have to be bested for drug and alcohol use before she would be permitted to return to school. Mr. Hedges asked where he should take Tara to be tested. G. Hedges Dep. at 12: 15-17; 14:23-15.4. Nurse Kiely told him that the school generally used Urgent Care. Id. at 14:23-15:4. Nurse Kiely testified that she told Mr. Hedges that the school would pay the bill if he used Urgent Care.*fn6 Kiely Dep. at 36:24-25. However, Mr. Hedges testified that the issue of who would pay for the tests never came up. G. Hedges Dep. at 13:25-14:7.

The NHRHS Policy provides that "[t]he examination may be performed by a physician selected by the parent or guardian, or by the school doctor if s/he is immediately available(4)27 If, at the request of the parent or guardian, the medical examination is conducted by a physician other than the school doctor, such an examination shall be at the expense of the parent and not the school district," NHRHS Policy at 1, ¶¶ 3 and 4. No one informed Mr. Hedges that he could have his own physician perform the drug and alcohol tests at his own expense. Kiely Dep. at 37:1-14. Mr. Hedges did not ask whether he could take Tara to another doctor or facility other than Urgent Care for testing. G. Hedges Dep. at 13:22-24.

Urgent Care

When Mr. Hedges and Tara arrived at Urgent Care, they checked in with the receptionist. The receptionist handed Mr. Hedges two forms: (1) a registration and consent forms; and (2) a release form. Mr. Hedges filled out both forms, signed his name at the bottom of the forms and handed them back to the receptionist.*fn7 Printed above Mr. Hedges' signature, the registration and consent form states: "I CONSENT TO TREATMENT NECESSARY FOR THE CARE or THE ABOVE PATIENT. . . . I HAVE READ AND FULLY UNDERSTAND THE ABOVE CONSENT FOR TREATMENT, RELEASE OR MEDICAL INFORMATION, INSURANCE AUTHORIZATION AND MY FINANCIAL RESPONSIBILITY." Sherman Cert., Ex. B (Registration and Consent Form).

Shortly thereafter, Dr. Foley,*fn8 an Urgent Care doctor, examined Tara. Dr. Foley concluded that based on the physical examination, Tara did "not appear to be under the influence of any illicit substance or alcohol" and there was "no evidence of any chronic use of illicit substances or alcohol." Latimer Cert., Ex. E (Dr. Foley's report). Tara then provided Urgent Care with a urine specimen.

While Mr. Hedges was waiting for Tara outside of the examination room, he saw Defendant Barbara Neumann, the phlebotomist, walking towards the examination room with a needle. He asked Ms. Neumann why she had a needle and she replied that Tara had to have a blood test. After hearing this information, Mr. Hedges left Urgent Care and walked to a nearby pharmacy by himself*fn9 He did not withdraw his consent allowing Urgent Care to perform Tara's blood test.

Ms. Neumann attempted to draw blood from Tara's right arm but was unsuccessful. She then attempted to draw blood from Tara's left arm but was also unsuccessful. According to Ms. Neumann, after the two unsuccessful attempts, she left the room and summoned Dr. Foley. Tara testified, however, that Ms. Neumann stuck her arms five times unsuccessfully before asking for Dr. Foley's help. Tars also testified that when Ms. Neumann left the room to get Dr. Foley, she left the tourniquet on her arm. Ms. Neumann denies doing so. Dr. Foley was able to draw blood from Tara's arm on his first attempt. Plaintiffs allege that Tara suffered hematoma in both arms as a result of Ms. Neumann's actions. In support of this allegation, Plaintiffs have submitted photographs depicting Tara's arms following the blood test. Latimer Cert., Ex. G. Later that day, Mr. Hedges contacted his attorney, Warren Clark. The next day, April 9, 1996, Plaintiffs, Tara and Mr. Clark met with Mr. Musco at 7:20 a.m. Nurse Kiely called Urgent Care at approximately 7:30 a.m. that same morning for the results of Tara's drug and alcohol tests. The tests results were negative for drugs and alcohol and NHRHS readmitted Tara in time for her second period class on April 9.

When Tara returned to school that day, a student approached her and told her he had overheard Nurse Kiely on the phone when she was obtaining Tara's results. The student told Tara that he heard Nurse Kiely say, "Negative? Are you sure? You are kidding. I am shocked." T. Hedges Dep. at 79:13-17; accord Kiely Dep. at 54:24-25. By the end of the school day many students knew that Tara had been tested for drugs and alcohol. T. Hedges Dep. at 52:7-12. Thirty to forty students asked Tara what had happened and asked to see the bruises on her arms. Id. at 52:1-53:3. They asked if she had been caught using drugs. Id. at 52:24-53:10.

Plaintiffs filed suit on October 30, 1996. Plaintiffs allege that there was no reasonable suspicion for the search including the testing of bodily fluids. Plaintiffs allege that as a result of the NHRHS Defendants' actions, Tara has been stigmatized by her fellow students as a drug user. Plaintiffs further allege that Ms. Neumann committed assault and battery by attempting to draw blood without Plaintiffs' consent. Plaintiffs also contend that the NHRHS Board of Education failed to train its staff properly. In particular, Plaintiffs allege, staff members did not know or follow proper procedures when a student was suspected of being under the influence of drugs or alcohol.

The NHRHS Defendants filed a cross-claim against the Medical Defendants for contribution and indemnification. The Medical Defendants filed a cross-claim for contribution against the NHRHS Defendants. All of the defendants have moved for summary judgment. Plaintiffs have cross-moved for summary judgment on Counts I, II, III and IV.

DISCUSSION

STANDARD FOR SUMMARY JUDGMENT

Fed.R.Civ.P. 56(c) provides for summary judgment when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Orson, Inc. v. Miramax v Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). In making this determination, the court must draw all reasonable inferences in favor of the non-movant. See Hullett v. Towers, Perrin, Forster & ...


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