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Gregory Bou v. State of New Jersey

May 7, 2012


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS, Senior District Judge:

Plaintiff initiated this action to recover for injuries sustained when two New Jersey State Troopers attempted to take him to the hospital following a 911 call from Plaintiff's school nurse.*fn1 Pending before the Court is Defendants' Motion to Dismiss Plaintiff's claims under Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("RA").


On November 18, 2009, Troopers Michael DePinto and Charles Hurley responded to a 911 call from school nurse Terri Land ("Nurse Land") at the Sequoia Alternative Program ("Sequoia"). (Amended Compl. ¶¶ 15, 17, 19.) The call was made after Plaintiff Bou, a Sequoia student, reported to Nurse Land that he was not feeling well because he took too much medication. (Id. ¶ 15.) The Complaint alleges that Nurse Land was aware that Plaintiff suffers from bipolar disorder and major depression with psychotic features, and that he had received treatment for his mental illness at Hampton Hospital. (Id. ¶¶ 9, 11.) Nurse Land contacted Plaintiff's mother and his physicians, who instructed her to call 911. (Id. ¶¶ 9, 11.)

Upon arrival, the Troopers spoke to Nurse Land privately behind closed doors, while Plaintiff sat outside the office wearing headphones, and talking to two Sequoia employees and his cousin via cell phone. (Id. ¶¶ 18-20.) After the Troopers spoke with Nurse Land, they approached Plaintiff and told him he was going to the hospital. (Id. ¶ 21.) The Troopers said nothing else to Plaintiff except that he was going to the hospital. (Id.)

Plaintiff became apprehensive and called his mother to see if she could take him to the hospital. (Id. ¶ 23.) When Plaintiff's mother told him she was unable to take him, Plaintiff became upset and threw his phone on the floor. (Id.) At this point, the Troopers "assaulted Plaintiff without first trying to talk to him or calm him down." (Id. ¶ 28.) According to the Complaint, the Troopers "grabbed Plaintiff out of his seat and placed Plaintiff in a headlock, causing Plaintiff to choke. [The Troopers] then proceeded to smash Plaintiff's head and face to the ground." (Id. ¶ 29.)

Plaintiff was then handcuffed on the ground and placed in a police vehicle until an ambulance arrived, whereupon he was taken to the emergency room at Virtua Hospital. (Id. ¶¶ 33-34.) Plaintiff's injuries included "severe swelling and bruising over his left lateral orbit and abrasions on his neck." (Id. ¶ 35.)

Plaintiff filed his initial Complaint on October 31, 2011. On February 29, 2012, Defendants filed a Motion to Dismiss the Complaint. On March 12, 2012, Plaintiff amended his Complaint and dropped his claims against the New Jersey State Police pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act, as well as corresponding state common law claims. On March 27, 2012, Defendants filed a Motion to Dismiss the claims pursuant to Title II of the ADA and Section 504 of the RA asserted against the New Jersey State Police and the individual Troopers in the Amended Complaint.


Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2).

While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

When evaluating a Rule 12(b)(6) motion to dismiss, the Court considers "only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of America, 361 F.3d 217, 221 n.3 (3d Cir. 2004). A document that forms the basis of a claim is one that is "integral to or explicitly relied upon in the ...

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