use of illicit substances or alcohol." Latimer Cert., Ex. E (Dr.
Foley's report). Tara then provided Urgent Care with a urine
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.
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 & Crosby,
Inc., 38 F.3d 107, 111 (3d Cir. 1994); National State Bank v.
Federal Reserve Bank of New York, 979 F.2d 1579, 1581 (3d Cir.
Once the moving party has satisfied its initial burden, the
party opposing the motion must establish that a genuine issue as
to a material fact exists. See Jersey Cent. Power & Light Co. v.
Lacey To ship, 772 F.2d 1103, 1109 (3d Cir. 1985). The party
opposing the motion for summary judgment cannot rest on mere
allegations and must instead present actual evidence that creates
a genuine issue as to a material fact for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 243, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Siegel Transfer Inc. v. Carrier Express,
Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported
allegations in [a plaintiffs] memorandum and pleadings are
insufficient to repel summary judgment." Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Fed.
R.Civ.P. 56(e) (requiring non-moving party to "set forth
specific facts showing that there is a genuine issue for
trial."). In determining whether there are any issues of material
fact, the court must resolve all reasonable doubts as to the
existence of a material fact against the moving party. See Smith
v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.
Defendants argue that there are no genuine issues as to a
material fact remaining for trial. Plaintiffs agree that there
are no genuine issues as to a material fact in dispute with
regard to Counts I, II, III and IV, the unreasonable search and
seizure claims. However, Plaintiffs contend that genuine issues
as to material facts exist with regard to the remaining counts.
Since this Court concludes that Defendants are immune from suit,
this Court need not address whether a genuine issue as to a
material fact exists on these remaining counts.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that: (1) the conduct complained of was committed by a
person acting under color of state law; and (2) that his conduct
deprived plaintiff of rights, privileges or immunities secured by
the United States Constitution or laws of the United
States.*fn10 See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct.
2250, 101 L.Ed.2d 40 (1988); Shaw by Strain v. Strackhouse,
920 F.2d 1135, 1141-42 (3d Cir. 1990); McArdle v. Tronetti,
769 F. Supp. 188, 190 (W.D.Pa. 1991), aff'd, 961 F.2d 1083 (3d Cir.
Section 1983 does not create any rights, but instead provides a
remedy for violation of those rights created by the United States
Constitution or federal law. See Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906-07 (3d Cir. 1997); Baker v. McCollan,
443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
Plaintiffs base their § 1983 claims on violations of the
Fourth, Ninth and Fourteenth Amendments of the United States
Constitution and the New Jersey Constitution.
UNREASONABLE SEARCH AND SEIZURE
Counts I and II allege that Mr. McDonald reported Tara to the
school administrator without having reasonable suspicion that
Tara was under the influence of drugs or alcohol. Counts III and
IV allege that Nurse Kiely and Mr. Musco ordered blood and urine
samples without reasonable suspicion. Plaintiffs assert that
these actions constitute an unreasonable search and seizure in
violation of the Fourth and Fourteenth Amendments of the United
States Constitution and Article 1, ¶ 7 of the New Jersey
The Fourth Amendment ensures that the "right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." U.S.
Const., Amend. IV; accord N.J. Const. art. 1, ¶ 67 (West
1997).*fn11 The United States Constitution, "by virtue of the
Fourteenth Amendment, prohibits unreasonable searches and
seizures by state officers." New Jersey v. T.L.O., 469 U.S. 325,
334, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (quoting Elkins v.
United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669
(1960)). As state officers, public school officials are subject
to the Fourth Amendment's prohibition against unreasonable
searches and seizures. See id. Thus, the Supreme Court has held
that "the Fourth Amendment applies to searches conducted by
school authorities". Id. at 337, 105 S.Ct. 733.
A school's search of a student's person, in this case by virtue
of a urinalysis and blood test and the search of a bookbag, "no
less than a similar search carried out on an adult, is
undoubtedly a severe violation of subjective expectations of
privacy." Id. at 337-38, 105 S.Ct. 733;*fn12 see also United
States v. Ward, 131 F.3d 335, 340 (3d Cir. 1997) (a compelled
blood test is a body intrusion and a search within the meaning of
the Fourth Amendment). A pupil's legitimate privacy interest,
however, must be balanced against "the substantial interest of
teachers and administrators in maintaining discipline in the
classroom and on school grounds." Id. at 339.
In T.L.O., the Supreme Court held that although, ordinarily, a
state official must have probable cause to believe that a crime
has been committed before conducting a search, the probable cause
standard is inapplicable in a school setting. 469 U.S. at 340,
105 S.Ct. 733. "Rather, the legality of a search of a student
should depend simply on the reasonableness, under all the
circumstances, of the search." Id. at 341, 105 S.Ct. 733. A
school official's. search of a student's person or his or her
property is reasonable if (1) "the . . . action was justified at
its inception," and (2) "the search as actually conducted was
reasonably related in scope to the circumstances which justified
the interference in the first place." Id. (internal citations and
quotations omitted). The Court further held that a search "will
be `justified at its inception' when there are reasonable grounds
for suspecting that the search will turn up evidence that the
student has violated or is violating either the law or the rules
of the school." Id. at 341-42, 105 S.Ct. 733. A search "will he
permissible in its scope when the measures adopted are reasonably
related to the objectives of the search and not excessively
intrusive in light of the age and sex of the student and the
nature of the infraction." Id. at 342, 105 S.Ct. 733.
Plaintiffs claim Mr. McDonald reported Tara to the school
administrator without having reasonable suspicion that Tara was
under the influence of drugs or alcohol. Plaintiffs further
allege that Nurse Kiely and Mr. Musco ordered blood and urine
samples without reasonable suspicion. This Court, however, need
not address the reasonableness of Defendant's actions based on
Immunity Under N.J.Stat.Ann. § 18A:40A-13
The New Jersey Legislature has enacted legislation directed at
preventing and eliminating drug and alcohol abuse in its schools.
See N.J.Stat.Ann. § 18A:40A-8 et seq. (West 1998).
N.J.Stat.Ann. § 18A:40A-10 and § 18A:40A-11 require local
education to adopt and implement comprehensive substance abuse
evaluation procedures and prevention, intervention and treatment
programs in their respective school districts. In addition,
N.J.Stat.Ann. § 18A:40A-12 specifically provides:
a. Whenever it shall appear to any teaching
staff member, school nurse or other
educational personnel of any public school
in this State that a pupil may be under the
influence of substances as defined pursuant
to section 2 of this act, other than
anabolic steroids, that teaching staff member,
school nurse or other educational personnel
shall report the matter as soon as
possible to the school nurse or medical
inspector, as the case may be, or to a
substance awareness coordinator, and to
the principal or, in his absence, to his
designee. The principal or his designee,
shall immediately notify the parent or
guardian and the superintendent of
schools, if there be one, or the administrative
principal and shall arrange for an immediate
examination of the pupil by a doctor
selected by the parent or guardian, or
if that doctor is not immediately available,
by the medical inspector, if he is available. . . .
The pupil shall be examined as
soon as possible for the purpose of diagnosing
whether or not the pupil is under
such influence. A written report of that
examination shall be furnished within 24
hours by the examining physician to the
parent or guardian of the pupil and to the
superintendent of schools or administrative
The regulations promulgated thereunder track the language of
N.J.Stat.Ann. § 18A:40A-12, see N.J. Admin.Code tit. 6, §
29-6.5, and mandate that the "[d]istrict board of education . . .
adopt and implement polices and procedures for the
evaluation . . . of pupils . . . who on reasonable grounds are
suspected of being under the influence" of drugs and alcohol. See
N.J.Admin.Code tit. 6, § 29-6.3; accord N.J.Stat.Ann. §
18A:40A-10. The NHRHS Policy merely complies with this mandate
and incorporates the provisions of N.J.Stat.Ann. § 18A:40A-12
and N.J.Admin.Code tit. 6, § 29-6.1-6.5 into its policy. See
NHRHS Policy (stating that "the following policies and procedures
are in accordance with [N.J.Admin.Code tit. 6, § 29-6.1-6.5]"
and citing to N.J.Stat.Ann. §§ 18A:40A-12, 18A:40A-13,
Mr. McDonald was acting in accordance with the provisions of
the NHRHS policy, the statute and the regulations when he, a
"staff member" reported Tara to the school administrator because
it appeared to him that she "may be under the influence of
alcoholic beverages or other drugs on school property". NHRHS
Policy at 1, ¶ 1; N.J.Admin.Code tit. 6, § 29-6.5(a)(1);
accord N.J.Stat.Ann. § 18A:40A-12(a). Similarly, Nurse Kiely
and Mr. Musco were following the NHRHS Policy, the state statute
and the regulations when they ordered an "[e]xamination by a
physician for the purpose of diagnosing whether [Tara] [was]
under the influence of alcohol and/or other drugs."
N.J.Admin.Code tit. 6, § 29-6.3(c)(4)(i); see also
N.J.Admin.Code tit. 6, § 29-6.5(a)(2) (the principal shall
"arrange for an immediate examination of the pupil");
N.J.Stat.Ann. § 18A:40A-12 (same).*fn13 Further, the NHRHS
Policy requires a blood test when a student is suspected of being
under the influence of drugs or alcohol. See NHRHS Policy at 3,
As part of its scheme to eradicate drug and alcohol abuse in
New Jersey schools, the state legislature enacted N.J.Stat.Ann.
§ 18A:40A-13 which provides in relevant part:
No action of any kind in any court of
competent jurisdiction shall lie against
any teaching staff member, including a
substance awareness coordinator, any
school nurse or other educational personnel,
medical inspector, examining physician
or any other officer, agent or any employee
of the board of education or personnel
of the emergency room of a hospital because
of any action taken by virtue of the
provisions of this act, provided the skill
and care given is that ordinarily required
and exercised by other teaching staff members,
nurses, educational personnel, medical
inspectors, physicians or other officers,
agents, or any employees of the board of
education or emergency room personnel.
(West 1998) (emphasis added).
Mr. McDonald is a teacher, Nurse Kiely is the school nurse and
Mr. Musco is the school principal. They were all following the
NHRHS Policy, the state statute and the regulations when they
committed the actions Plaintiff's allege violated Tara's
constitutional rights against unreasonable searches and seizures.
Therefore, as a matter of law, Mr. McDonald,*fn14 Nurse Kiely
and Mr. Musco are immune from suit "in any court of competent
jurisdiction" for any actions taken pursuant to N.J.Stat.Ann.
§ 18A:40A-12, the regulations and the NHRHS Policy.*fn15 See
N.J.Stat.Ann. § 18A:40A-13.
Defendants' Alleged Violations of the NHRHS Policy
Plaintiffs claim that Nurse Kiely and Mr. Musco did not follow
the school's policy in that (a) they did not permit Tara to be
examined by the family's physician; (b) no provision was made for
Tara's care while she was awaiting the results of the medical
examination; (c) Defendants did not provide Plaintiffs with a
written report of Tara's medical examination until nine days
after the examination; and (d) the results of the examination
were disclosed to students and staff. Compl. ¶ 40. The Court
shall address each of these allegations separately.
Failure to Inform Mr. Hedges of Physician of Choice Option
Plaintiffs claim that Nurse Kiely and Mr. Musco violated the
NHRHS Policy because they did not inform Mr. Hedges that he could
take Tara to their family physician to be tested. Nurse Kiely and
Mr. Musco's failure to explicitly tell Mr. Hedges that he could
take Tara to the family physician does not rise to the level of a
constitutional violation. More important, Nurse Kiely's and Mr.
Musco's omission does not. defeat the immunity provided by
N.J.Stat.Ann. § 18A:40A-13 because their actions in arranging
for the examination were "taken by virtue of the provisions of"
N.J.Stat.Ann. § 18A:40A-12. See N.J.Stat.Ann. §
18A:40A-13. Furthermore, Mr. Hedges asked where he should take
Tara to be tested. Either Nurse Kiely or Mr. Musco replied that
the school "generally" used Urgent Care in Waldwick on Franklin
Turnpike. Kiely Dep. at 36:17-25. The term "generally" implies
that there are exceptions. However, Mr. Hedges did not ask
whether he could take Tara to be tested elsewhere nor did he
mention or request seeing the Hedges' family doctor. G. Hedges
Dep. at 13:22-24. Furthermore, neither Nurse Kiely nor Mr. Musco
directed or ordered Mr. Hedges to take Tara to Urgent Care.*fn16
Thus, this Court concludes that defendants'
failure to explicitly tell Mr. Hedges that Tara could be tested
by the family doctor, does not constitute a violation of the
NHRHS Policy which would defeat their immunity under
N.J.Stat.Ann. § 18A:40A-13.
Failure to Make Appropriate Provisions for Tara's Care During
Plaintiffs claim that Defendants failed to make appropriate
provisions for Tara's care while she was awaiting the results of
the medical examination. Compl. ¶ 40(b). Although Plaintiffs
made this allegation in their Complaint, they have not stated
what provisions Defendants should have made for Tara. Plaintiffs
received the results of Tara's examination within 24 hours and
Tara was readmitted to school as soon as the NHRHS Defendants
learned that the tests results were negative for drugs or
alcohol. Plaintiffs' failure to specify what provisions were
required for Tara during that 24 hour waiting period precludes a
finding by this Court that Defendants violated the NHRHS Policy
or behaved negligently.
Failure to Provide Written Report of Examination Within 24 Hours
Plaintiffs claim that Defendants violated the NHRHS Policy
because they failed to provide them with a written report of
Tara's medical examination until nine days after the examination.
The NHRHS Policy requires that results of the examination be
reported to the parents within 24 hours. NHRHS Policy at 2, ¶
6. Plaintiffs are putting form over substance. Although Dr. Foley
did not prepare his written examination until April 17, 1996,
Defendants verbally provided Plaintiffs with the results of the
examination within 24 hours and Tara was back in school within
that period of time. Further, the regulations provide that "[i]f
the written report of the medical examination is not submitted to
the parent or guardian, principal and chief administrator within
24 hours, the pupil shall be allowed to return to school until
such time as a positive diagnosis of alcohol or other drug use is
received." N.J.Admin.Code tit. 6, § 29-6.5(a)(6). In
accordance with the regulations, Defendants allowed Tara to
return to school within 24 hours and a diagnosis, albeit an oral
one, was received in less than 24 hours.
Disclosure of Test Results Violates Constitutional Right to
Plaintiffs assert that Nurse Kiely and Mr. Musco violated the
NHRHS Policy by disclosing the results of Tara's test results to
students and staff. Further, Counts VII and VIII allege that Mr.
Musco's and Nurse Kiely's disclosure of Tara's examination and
the results of the drug and alcohol tests violate Tara's right to
privacy under the Ninth*fn17 and Fourteenth Amendments of the
United States Constitution and Article 1, ¶ 1 of the New
The NHRHS Policy provides that the result of a pupil's medical
examination for drug or alcohol shall only "be shared with the
nurse, the substance abuse counselor and the Superintendent".
NHRHS Policy at 2, ¶ 6. A student overhead Nurse Kiely on the
phone when she called Urgent Care to obtain the results of Tara's
drug and alcohol tests. T. Hedges Dep. at 79:13-17. Many NHRHS
students discovered that Tara had been tested for drug and
alcohol abuse. Id. at 52:7-12. Since Defendants' disclosure of
Tara's examination and test results is not an "action taken by
virtue of the provisions of [N.J.Stat. Ann. § 18A:40A-12]",
Defendants are not immune
from suit on Plaintiffs' right to privacy claims. N.J.Stat.Ann.
§ 18A:40A-13. Thus, this Court must substantively address the
merits of Plaintiffs' allegation that disclosure of Tara's
examination violates her constitutional right to privacy.
The right to privacy protects two types of privacy interests:
"One is the individual interest in avoiding disclosure of
personal matters, and another is the interest in independence in
making certain kinds of important decisions." Whalen v. Roe,
429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (footnotes
omitted). Plaintiffs' asserted privacy interest falls within the
first category, the right not to have their personal affairs made
public by NHRHS. See United Stetes v. Westinghouse Elec. Corp.,
638 F.2d 570, 577 (3d Cir. 1980).
The Third Circuit has held that an individual's medical
condition and medical records are entitled to privacy protection.
See id.; Doe v. SEPTA, 72 F.3d 1133, 1137 (3d Cir. 1995). In the
instant case, there has been no disclosure of Tara's medical
condition or her medical records. All that has been disclosed is
that she tested negative for drugs and alcohol. Plaintiffs refer
this Court to Doe v. Borough of Barrington, 729 F. Supp. 376
(D.N.J. 1990), where the court found that a police officer
violated plaintiffs constitutional right to privacy when he
disclosed to plaintiffs neighbors that plaintiff had AIDS. Doe,
however, is inapposite.
The court in stated
The sensitive nature of medical information
about AIDS makes a compelling argument
for keeping this information confidential
. . . Also, the privacy interest in
one's exposure to the AIDS virus is even
greater than one's privacy interest in ordinary
medical records because of the stigma
that attaches with the disease.
729 F. Supp. at 384. Plaintiffs argue that the Doe analysis
applicable in the instant case "because the dissemination of
information about the very fact of being tested for drugs and
alcohol carries with it a similar stigma". Pl.'s Br. in Support
of Cross-Mot. for Summ.J. at 30. This Court disagrees.
In Doe, the plaintiff tested positive for the AIDS virus.
Conversely, Tara tested negative for intoxication and drug use.
Any possible stigma that may attach to being tested for
intoxication and drug use does not approach that associated with
the AIDS virus especially when Tara's test results for drugs and
alcohol were negative.
Furthermore, Defendants never intended for the students at
NHRHS to discover that Tara had been tested for drug and alcohol
use. There is no evidence that Nurse Kiely expected that students
would overhear her telephone conversation with Urgent Care or
that she acted negligently which then lead to the disclosure.
Consequently, Defendant's motion for summary judgment of Counts
VII and VIII is granted.
FAILURE TO TRAIN NHRHS STAFF
Counts V and VI allege that the members of the NHRHS Board of
Education, specifically, Defendants Geisenheimer, Beisswanger,
Laurent, Blayman, Deniear, Krueger, Dubie, Kempey, Oliver,
Malizia, Strohmeyer and Musco, "were deliberately indifferent to
the rights of plaintiff in that they failed to adequately train,
supervise and control faculty and staff of NHRHS in the
procedures to be followed if a student is suspected of substance
abuse." Compl. ¶¶ 57, 60. Plaintiffs further allege that this
failure to train "is a policy and practice of the NHRHS Board of
Education and Musco" in violation of the Fourth and Fourteenth
Amendments of the United States Constitution and Article 1, ¶
7 of the New Jersey Constitution. Id. ¶¶ 58, 61.
To hold the members of the NHRHS Board of Education liable on a
failure to train theory under § 1983, Plaintiffs must
establish that: (1) Nurse Kiely, Mr. McDonald or Mr. Musco
inflicted a cognizable injury on Tara; (2) Nurse Kiely, Mr.
McDonald or Mr. Musco acted pursuant to a NHRHS Board of
Education custom or policy not to adequately train or supervise
its employees; (3) there is a direct causal link between the
custom or policy and the alleged constitutional violation; and
(4) the failure to so train or supervise amounts to deliberate
indifference to the rights of the NHRHS pupils. See City of
Canton, Ohio v. Harris,
489 U.S. 378, 385-88, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see
also Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996).*fn19
The NHRHS Board of Education's training or supervision of
teachers and noneducational staff must be such that the need for
more or different training is so obvious, and the inadequacy of
the current training is "so likely to result in violations of
constitutional rights", that the NHRHS Board of Education members
can "reasonably [be] said to have been deliberately indifferent
to the constitutional needs of the [students]." Board of the
County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 117
S.Ct. 1382, 1392, 137 L.Ed.2d 626 (1997).
The NHRHS Board of Education's deliberate indifference is not
established by 1) presenting evidence of the shortcomings of an
individual teacher, nurse or principal;*fn20 2) proving that an
otherwise sound training program was occasionally administered
negligently; or 3) showing, without more, that better training
would have enabled a staff member to avoid the injury-causing
conduct. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1060
(3d Cir. 1991) (citing Canton, 489 U.S. at 391, 109 S.Ct. 1197).
"[M]ere negligence in training [the NHRHS staff members] will not
create a Section 1983 claim." Malignaggi v. County of Gloucester,
855 F. Supp. 74, 77 (D.N.J. 1994) (citing Canton, 489 U.S. at
388, 109 S.Ct. 1197).
The NHRHS Board of Education and its members are immune from
suit pursuant to N.J.Stat.Ann. § 18A:40A-13. As stated above,
N.J.Stat.Ann. § 18A:40-13 grants immunity from suit to "any
employee of the board of education" for "any action taken by
virtue of the provisions of [N.J.Stat. Ann. § 18A:40-12],
provided the skill and care given is that ordinarily required and
exercised by other such . . . employees of the board of
education. . . ."
Plaintiffs have not submitted any evidence indicating that the
members of the NHRHS Board of Education did not provide the NHRHS
teachers and noneducational staff with the training ordinarily
provided by other boards of education. Conversely, the NHRHS has
shown that it did provide adequate training for the NHRHS staff.
Mr. McDonald participated in a three-day training program which
addressed the recognition and treatment of students suspected to
be under the influence of drugs or alcohol. Morgenstern Aff., Ex.
N (training program materials). Indeed, Mr. McDonald was one of
two teachers who participated in the drafting of the NHRHS
Nurse Kiely was an experienced school nurse*fn21 who was
trained in the detection and treatment of students under the
influence of drugs and alcohol. In fact, in the 1995-96 school
year, Nurse Kiely sent eight students at NHRHS to be tested for
drugs or alcohol in their system. Five of those eight students
tested positive. Further, both Mr. McDonald and Nurse Kiely were
members of CORE, the student assistance drug team.*fn22
Plaintiffs have failed to show that the need for more training
of NHRHS's teachers, nurses and officials was so evident and "so
likely to result in violations of constitutional rights", that
the NHRHS Board of Education members can "reasonably [be] said to
have been deliberately indifferent to the
constitutional needs of the [students]." Brown, 117 S.Ct. at
1392. Thus, Defendants' motion for summary judgment dismissing
Counts V and VI is granted.
THE NHRHS POLICY IS UNCONSTITUTIONALLY VAGUE
In their main brief, Plaintiffs for the first time challenge
the first paragraph of the NHRHS Policy as unconstitutionally
vague. Paragraph 1 provides:
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. Plaintiffs maintain that the
language "[a]ny staff member to whom it appears that a pupil" is
unconstitutionally vague because the NHRHS Policy contains no
articulated standards or objective factors to guide the school
staff in determining whether a pupil appears to be under the
influence. Plaintiffs, however, have failed to plead this claim
in their Complaint. The Complaint does not contain any allegation
that the NHRHS Policy or portions thereof are unconstitutional or
unconstitutionally vague. The Court may not entertain a claim
which is raised for the first time in a brief in support of a
motion for summary judgment. Thus, Plaintiff's motion seeking the
Court's determination that the NHRHS Policy is unconstitutionally
vague is denied for failure to plead the claim properly.
STATE LAW CLAIMS
Count IX alleges that the phlebotomist, Ms. Neumann, committed
assault and battery when she jabbed Tara five times in an attempt
to draw blood. Compl. ¶ 67. Count X alleges that as Ms.
Neumann's employer, Urgent Care is liable for Ms. Neumann's
actions. Id. ¶ 69. Count XI asserts that Urgent Care's
failure to properly train and supervise Ms. Neumann caused Tara's
injuries. Id. ¶ 71.
In cases where there are both federal and state law claims and
the federal claims are dismissed, the Court may also dismiss the
state law claims on jurisdictional grounds. This Court cannot
exercise pendent jurisdiction over state law claims unless, at a
minimum, there is:
a federal claim of sufficient substance to
confer subject matter jurisdiction on the
court. The substantiality of the federal
claim is ordinarily determined on the basis
of the pleadings. If it appears that the
federal claim is subject to dismissal under
F.R.Civ.P. 12(b)(6) or could be disposed of
on a motion for summary judgment under
F.R.Civ.P. 56, then the court should ordinarily
refrain from exercising jurisdiction
in the absence of extraordinary circumstances.
Tully v. Mott Supermarkets, Inc.,