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L.S. and R.S. On Behalf of S.S., An Infant, and Individually v. Mount Olive Board of Education

February 25, 2011

L.S. AND R.S. ON BEHALF OF S.S., AN INFANT, AND INDIVIDUALLY, PLAINTIFFS,
v.
MOUNT OLIVE BOARD OF EDUCATION,
MICHAEL IANNUCCI, AUDREY STRAHL, CHRISTOPHER BOSCH, JULIAN JOHNSON,
KEVIN STANSBERRY, ROSALIE LAMONTE, INDIVIDUALLY AND AS EMPLOYEES OF THE MOUNT OLIVE BOARD OF EDUCATION, AND JOHN DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Debevoise, Senior District Judge

FOR PUBLICATION

OPINION

Appearances by:

This matter arises out of the ill-conceived notion to use a 10th grade student's confidential psychiatric evaluation as a tool to teach the famous J.D. Salinger novel, The Catcher in the Rye to an 11th grade English class.

On June 23, 2009, R.S. and L.S., individually, and on behalf of their son, S.S., filed a Complaint against the Mount Olive Board of Education ("the Board), Michael Iannucci, Audrey Strahl, and Christopher Bosch, alleging violations of (1) S.S.'s constitutional rights under 42 U.S.C. § 1983 ("Section 1983"); (2) the New Jersey Constitution and the New Jersey Pupil Records Act ("NJPRA"), N.J.S.A. 18A:35-19; (3) the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, and Health Insurance Portability and Accountability Act ("HIPAA"), 29 U.S.C. § 1181; and (4) general negligence principles, and seeking compensatory and punitive damages. Plaintiffs amended the Complaint on March 23, 2010 to join Julian Johnson, Kevin Stansberry, and Rosalie Lamonte as defendants.

Defendants now move for summary judgment on all of Plaintiffs' claims, except those against Mr. Bosch and Mr. Johnson for negligence. In doing so, they contend that (1) L.S. and R.S. failed to establish a prime face case under Section 1983 in their individual capacities; (2) Plaintiffs failed to establish a violation of S.S.'s constitutional rights under the First and Fourth Amendments; (3) Plaintiffs failed to state a claim under Section 1983 against all Defendants for the violation of S.S.'s constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment; (4) Plaintiffs failed to state a claim under the New Jersey Constitution against all Defendants; (5) Plaintiffs failed to state a claim under the NJPRA, IDEA, FERPA,and HIPAA; and (6) Plaintiffs failed to state a claim for negligence against all Defendants except Mr. Johnson and Mr. Bosch.

In addition, Plaintiffs cross-move for partial summary judgment in favor of their claims against Mr. Johnson and Mr. Bosch for violations of S.S.'s right to privacy under the United States and New Jersey Constitutions, as well as those for negligence against all Defendants. In doing so, they argue that (1) the undisputed evidence indicates that Mr. Johnson's and Mr. Bosch's conduct deprived S.S. of his right to privacy under the Due Process Clause of the Fourteenth Amendment and Article I, Paragraph 1 of the New Jersey Constitution; and (2) Defendants' violation of the NJPRA, IDEA, FERPA, and HIPAA constitute negligence per se.

For the reasons set forth below, Plaintiffs' and Defendants' motions are granted in part and denied in part. L.S. and R.S.'s claims under Section 1983 are dismissed because they failed to establish a violation of their constitutional rights in their individual capacities. Plaintiffs' claims under Section 1983 for violations of the First and Fourth Amendments are dismissed because they failed to establish a violation of their rights under those amendments.

Plaintiffs are entitled to summary judgment in favor of the liability portions of their claims under Section 1983 against Mr. Johnson and Mr. Bosch for the violation of S.S.'s constitutional right to privacy, as well as their parallel claims under the New Jersey Constitution, because the undisputed evidence shows that the disclosure of S.S.'s confidential psychiatric evaluation was intentional. However, such claims are dismissed with respect to Mr. Iannucci, Ms. Strahl, Mr. Stansberry, and Ms. Lamonte because there is no evidence that either had any personal involvement, knowledge of, or acquiescence in the disclosure of S.S.'s evaluation. Such claims are also dismissed as against the Board because there is no evidence of a policy or custom, or failure to supervise or train, that exhibited a deliberate indifference towards S.S.'s constitutional rights.

Plaintiffs' claims under the NJPRA, IDEA, FERPA, and HIPAA are dismissed because the NJPRA, FERPA, and HIPAA do not provide for a private right of action altogether, while the IDEA does not provide a private right of action for damages. Finally, Plaintiffs are entitled to summary judgment in favor of the liability portion of their negligence claims against Mr. Johnson and Mr. Bosch, not because the violations of the NJRPA, IDEA, FERPA, and HIPAA constitute negligence per se, but that no reasonable juror could find that they did not breach a duty of care owed to S.S.

I. BACKGROUND

S.S. is a high school student in the Mount Olive school district that has struggled with diabetes and anxiety since the third grade. He was first diagnosed with diabetes in March 2002, at the age of nine. In the following years, S.S., his parents, and doctors attempted to manage his diabetes with mixed results. On several occasions, S.S. experienced dangerously high blood sugar levels, and even went into diabetic shock. In addition, S.S. missed significant portions of school, complaining about abdominal pains, sore throat, nausea, headaches, and fatigue. His doctors and parents further observed that he was exhibiting symptoms of depression and a general phobia of attending school-completing substantial portions of the seventh, eighth, and ninth grades through home instruction at a local library. He attended just three days of the tenth grade before resuming home instruction.

On October 21, 2008, S.S.'s parents, L.S. and R.S., attended a meeting with Michael Iannucci, Director of Special Services for the Board, Deborah Kuzma, Vice Principal of Mount Olive High School, Judy Sarubbi, S.S.'s guidance counselor, a Mrs. Pasquelone, S.S.'s English teacher, Julian Johnson, a social worker employed by the Board and S.S.'s case manager, and Jodi Martino, a social worker, via telephone, to develop an educational plan for S.S. under Section 504 of the Rehabilitation Act. That same day, Christopher Bosch, a special education instructor assigned to the classroom of Audrey Strahl, an English teacher at Mount Olive High School, was helping Ms. Strahl teach the famous J.D. Salinger novel, The Catcher in the Rye, to a class of 11th grade special education students. As an exercise, those students were instructed to prepare a psychological or psychiatric evaluation on Holden Caulfield, the novel's protagonist.

Prior to the meeting between S.S.'s parents and the aforementioned individuals, Mr. Bosch approached Mr. Johnson in his office to ask for assistance in securing a sample psychological or psychiatric evaluation to distribute to Ms. Strahl's students as a guide in preparing their own reports. Shockingly, Mr. Johnson offered S.S.'s psychiatric evaluation to Mr. Bosch and instructed him to delete any information that would personally identify S.S.*fn1 Mr. Bosch made a redacted copy of the evaluation and returned the original to Mr. Johnson. He then distributed copies of the redacted evaluation to Ms. Strahl's students to be used as a template.

Mr. Bosch's redactions were as ill-conceived as the notion to distribute S.S.'s evaluation in the first place: significant information about S.S.'s background and medical conditions was left in the document, including the fact the S.S. had been on home instruction, S.S.'s age, religion, grade, family members, physical conditions, past medical and psychiatric history, examinations, and diagnoses. W.P., one of Ms. Strahl's students that received the redacted evaluation, and a friend of S.S., recognized that the information in the evaluation pertained to S.S. Accordingly, he asked Mr. Bosch if the evaluation, in fact, belonged to S.S. Mr. Bosch said it did not and continued with the lesson.

After class, W.P. encountered R.S. and L.S., who were leaving their meeting, and told them that S.S.'s evaluation had been passed out in class as part of an assignment. He then gave them his copy of the redacted evaluation. As a result, they alerted the Mount Olive High School administration, who promptly collected and destroyed all copies of the evaluation.

The parties dispute the effect of this debacle on S.S. Plaintiffs contend that "S.S. reacted with disbelief, shock and embarrassment," and became too scared to attend school at all. (Pl.'s Br. Summ. J. 9.) In addition, they argue that S.S. became generally reclusive, withdrawn, and asocial. In contrast, Defendants maintain that S.S. was largely unaffected because he believed that most of his friends either did not read his evaluation or realize that it was his in the first place.

The following day, R.S. and L.S. filed an administrative complaint with the New Jersey Department of Education ("the Department") for breach of confidentiality of S.S.'s student records. On January 26, 2009, the Department issued a written report in response to the administrative complaint. In that report, the Department determined that the Board's personnel had breached the confidentiality of S.S.'s student records. In addition, the Department found that "district personnel are uninformed of the importance of maintaining the privacy of potentially disabled students and the confidentiality of the records of those students. Therefore, corrective action is required to ensure that no similar incident will ever occur." (Pl.'s Br. Summ. J., Ex.26.) As a result, the Department directed the District to create and implement procedures to prevent against the future disclosure of confidential student records.

To be sure, the Board maintains a privacy policy to protect the confidentiality of student records, including S.S.'s evaluation. (Pl.'s Br. Summ. J., Ex. 13.) However, Plaintiffs contend that the disclosure of S.S.'s evaluation was a direct result of the failure to properly implement the privacy policy. In doing so, they point to a corrective action plan initiated by the Board in April 2002 "to address concerns regarding the signing of access sheets to confidential student records," (Pl.'s Br. Summ. J. 11), as well as (1) instances where certain defendants were unable to recall specific provisions of the privacy policy or identify where they could find the policy at their depositions; (2) instances where authority to maintain the confidentiality of student records was delegated to personnel that did not receive personal training in the privacy policy; (3) instances where the written agendas of certain faculty meetings did not specifically refer to maintaining the confidentiality of student records or the privacy policy; and (4) the absence of a clear reference to the privacy policy or student record confidentiality in the faculty handbook. To further support this contention, Plaintiffs allege that (5) Ms. Lamonte never read the Board's privacy policy; (6) thatshe failed to personally train Mr. Iannucci in the privacy policy so that he could, in turn, properly train Mr. Bosch and Mr. Johnson in maintaining the confidentiality of student records; and (7) that the training sessions conducted by Mr. Iannucci to maintain the confidentiality of student records were inadequate.

On June 23, 2009, Plaintiffs filed a Complaint against the Board, Michael Iannucci, Audrey Strahl, and Christopher Bosch, alleging causes of action under (1) Section 1983 for the violation S.S.'s constitutional right to privacy under the Fourth and Fourteenth Amendments, and his rights under the First Amendment; (2) the New Jersey Constitution for the violation of S.S.'s right to privacy under Article I, Paragraphs 1 and 7; (3) the NJPRA, IDEA, FERPA and HIPAA; and (4) general negligence principles. Plaintiffs amended the Complaint on March 23, 2010 to join Julian Johnson, Kevin Stansberry, Principal of Mount Olive High School, and Rosalie Lamonte, the Board's Superintendent, as Defendants.

On August 20, 2010, Defendants moved for summary judgment on all of Plaintiffs' claims, except those against Mr. Johnson and Mr. Bosch for negligence. In doing so, they contend that (1) L.S. and R.S.'s claims in their individual capacities under Section 1983 and the New Jersey Constitution fail because there is no evidence of a violation of their federal or state constitutional rights; (2) Plaintiffs' claims under the First and Fourth Amendments fail because the disclosure of S.S.'s psychiatric evaluation in no way implicates his First or Fourth Amendment rights; (3) Plaintiffs' claims under Section 1983 for the violation of S.S.'s right to privacy under the Due Process Clause of the Fourteenth Amendment fail against Mr. Iannucci, Ms. Strahl, Mr. Stanberry, and Ms. Lamonte, because there is no evidence that they had any involvement in the disclosure of S.S.'s evaluation; (4) Plaintiffs' claims under Section 1983 for the violation of S.S.'s right to privacy fail against the Board because there is no evidence of a policy or custom that led to the disclosure of S.S.'s evaluation; (5) Plaintiffs' claims under Section 1983 for the violation of S.S.'s right to privacy against Mr. Johnson and Mr. Bosch fail because their conduct does not shock the conscience; (6) Plaintiffs' claims under the New Jersey Constitution fail for the same reasons as those under Section 1983; (7) Plaintiffs' claims under the NJPRA, IDEA, FERPA, and HIPAA fail because the NJPRA, FERPA, and HIPAA do not provide for a private right of action, while the IDEA does not provide for an action for damages; (8) L.S. and R.S.'s negligence claims fail because neither can establish that they were owed a duty of care; (9) Plaintiffs' negligence claims against Mr. Iannucci, Ms. Strahl, Mr. Lansberry, and Ms. Lamonte fail because there is no evidence that they played any part in the disclosure of S.S.'s evaluation, or were subject to respondeat superior liability; and (10) Plaintiffs' negligence claims against the Board fail because Plaintiffs failed to specifically plead a theory respondeat superior liability as required by the New Jersey Tort Claims Act.

On September 20, 2010, Plaintiffs cross-moved for partial summary judgment in favor of their claims under Section 1983 against Mr. Johnson and Mr. Bosch, as well as those for negligence against all Defendants. In doing so, they argue that (1) the undisputed evidence indicates that Mr. Johnson's and Mr. Bosch's conduct deprived S.S. of his right to privacy under the Due Process Clause of the Fourteenth Amendment; (2) Defendants' violation of the NJPRA, IDEA, FERPA, and HIPAA constitute negligence per se because S.S. is in the class of persons that those statutes were intended to protect.

II. DISCUSSION

The parties' cross-motions give rise to the following issues: (1) whether the disclosure of S.S.'s psychiatric evaluation implicates S.S.'s constitutional rights under the First and Fourth Amendments; (2) whether Mr. Iannucci, Ms. Strahl, Mr. Stansberry, and Ms. Lamonte had any personal involvement, knowledge of, or acquiescence in the disclosure of S.S.'s evaluation; (3) whether the Board maintained a policy or custom, or exhibited a failure to train or supervise, that indicates a deliberate indifference towards S.S.'s constitutional rights; (4) whether Mr. Bosch's and Mr. Johnson's conduct in disclosing S.S.'s evaluation rises above mere negligence; (5) whether Plaintiffs' claims under provisions of the New Jersey Constitution should be analyzed in the same way as those under the United States Constitution; (6) whether defendants breached a duty of care owed to L.S. and R.S.; (7) whether Mr. Iannucci, Ms. Strahl, Mr. Stansberry, and Ms. Lamonte breached a duty of care owed to S.S.; (8) whether Plaintiffs properly stated a claim against the Board under the New Jersey Tort Claims Act; (9) whether Defendants' violations of the NJPRA, IDEA, FERPA, and HIPAA merit a finding of negligence per se; and (10) whether a reasonable juror could find that Mr. Johnson and Mr. Bosch did not breach a duty of care owed to S.S. in disclosing his evaluation.

A. Standard of Review

Summary judgment is proper where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Id. Disputes over irrelevant or unnecessary facts will not preclude granting summary judgment.

The party moving for summary judgment has the burden of showing that no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear the burden of proof at trial, it may discharge its burden under the summary judgment standard by showing that there is an absence of evidence to support the non-moving party's case. Id. at 325. If the moving party can make such a showing, then the burden shifts to the non-moving party to present evidence that a genuine factual dispute exists and a trial is necessary. Id. at 324. In meeting its burden, the non-moving party must offer specific facts that establish a material dispute, not simply create "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

In deciding whether an issue of material fact exists, the Court must consider all facts and their reasonable inferences in the light most favorable to the non-moving party. See Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The Court's function, however, is not to weigh the evidence and rule on the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If there are no issues that require a trial, then judgment as a matter of law is appropriate. Id. at 251-52.

B. L.S. and R.S.'s Individual Claims under Section 1983

Defendants argue that R.S. and L.S. cannot assert claims under Section 1983 in their individual capacities because they fail to establish a prima facie under the statute.*fn2 Plaintiffs do not argue to the contrary.

Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983

Section 1983 does not create substantive rights; rather "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneip v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). In order to establish a prima facie case, a plaintiff must show that (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of his rights, privileges, or immunities secured by the Constitution or laws of the United States. Powell v. Ridge, 189 F.3d 387, 400 (3d Cir.1999).

Judging from (1) Plaintiffs' failure to respond to Defendants arguments; (2) a complete lack of evidence in the record of a violation of R.S. or L.S.'s constitutional rights; and (3)

Plaintiffs' failure to allege a violation of R.S. or L.S.'s constitutional rights in the Amended Complaint, it is unclear whether L.S. and R.S. ever intended to set forth claims under Section 1983 in their individual capacties. Nonetheless, to the ...


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