United States District Court, D. New Jersey
B.D. and BRIAN DUNKLEY, Plaintiffs,
BOARD OF EDUCATION OF THE GREATER EGG HARBOR REGIONAL HIGH SCHOOL DISTRICT, CAROL HOUCK, STEVEN CICCARIELLO, JAMES REINA, SCOTT PARKER, and EDWARD OTTEPKA, Defendants.
WILLIAM A. RIBACK, WILLIAM RIBACK, LLC, HADDONFIELD, NJ, On behalf of plaintiffs.
TIMOTHY R. BIEG, MICHAEL PAUL MADDEN MADDEN & MADDEN, HADDONFIELD, NJ, On behalf of defendants.
NOEL L. HILLMAN, District Judge.
This case involves allegations by a high school student in the Greater Egg Harbor Regional High School District that he was discriminated and retaliated against because of his race and his exercise of free speech. Presently before the Court is the motion of defendants to dismiss plaintiffs' claims. Also pending is plaintiffs' cross-motion for leave to amend their complaint. For the reasons expressed below, defendants' motion will be granted, and plaintiffs' motion will be granted in part and denied in part.
On October 28, 2013, plaintiff, Bryshawn Dunkley,  was a student at Cedar Creek High School, which is part of the Greater Egg Harbor Regional High School District. Plaintiffs claim that defendant Scott Parker, Vice-Principal of the high school, at the direction of defendants Steven Ciccariello, Superintendent, Carol Houck, Board of Education President, and James Reina, Principal, examined Bryshawn's out-of-school YouTube account, confronted Bryshawn about statements Bryshawn made on YouTube about a football teammate, and suspended him. It is unclear how long Bryshawn was suspended for this incident.
In what appears to be a separate incident, plaintiffs claim that Parker examined an "out-of-school, anonymous" Twitter account for which Bryshawn shared control. It appears that the Twitter account contained critical remarks about another student. Plaintiffs claim that Parker, at the direction of Ciccariello, Houck, and Reina, told the parents of the criticized student to press criminal charges against Bryshawn, even though the defendants knew that a Caucasian student - and not Bryshawn - was responsible for the comments. Plaintiffs claim that the parents of the criticized child called Bryshawn's father, plaintiff Brian Dunkley, and told him that they knew Bryshawn did not make those comments.
On February 21, 2014, plaintiffs claim that defendant Edward Ottepka, school resource officer at Cedar Creek High School, filed a formal juvenile complaint with the Atlantic County Prosecutor's Office through the Egg Harbor Township Police Department against Bryshawn for "repeated and anonymous offensive communications... against others in a manner that caused annoyance and alarm." Bryshawn was also suspended from school by Vice-Principal Parker for two weeks. Plaintiffs claim that Ottepka and Parker acted at the direction of Ciccariello, Houck, and Reina. Plaintiffs also claim that these discriminatory actions violated his First Amendment rights, and were taken against Bryshawn because he is African American. Plaintiffs claim that Caucasian students have made YouTube and Twitter comments about other students, but they have not been charged.
Plaintiffs further claim that Bryshawn's suspension and the juvenile complaint filed against him were in retaliation for Mr. Dunkley's protected activity. In 2008, Mr. Dunkley filed a lawsuit against Egg Harbor Township Police Officer, and football coach, Michael Luko regarding an incident involving his other son. That lawsuit was settled, but Mr. Dunkley claims that Luko continued to harass him, resulting in Mr. Dunkley filing internal affairs charges. Specifically, Mr. Dunkley claims that on several occasions he was harassed by Egg Harbor Township police officers when he was running with school permission on the Cedar Creek High School track. Mr. Dunkley claims that he complained to Ciccariello and Reina but they either ignored him or treated him poorly. Mr. Dunkley claims that Bryshawn's suspension and juvenile charges were in retaliation for Mr. Dunkley filing a lawsuit and internal affairs complaints against Luko.
To support plaintiffs' contention that Ciccariello, Houck, and Reina have demonstrated a pattern and practice of retaliating against people who exercise their right to free speech, plaintiffs relate that a parent who complained about Reina's school secretary - who allegedly was permitting students to drink alcohol at her home and brandish weapons, all of which was posted on social media websites - was rebuffed, and that Ciccariello, Houck, and Reina directed the school secretary to file unjustified criminal charges against the parent.
Based on these claims, plaintiffs advance the following counts in their proposed second amended complaint:
Count One - Violation of New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:6-1 et seq., against Ottepka and Parker because they filed a juvenile complaint and suspended Bryshawn due to his race.
Count Two - Violation of the First Amendment to the U.S. Constitution, the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 ("NJCRA"), New Jersey Constitution, Article 1, Paragraph 6, against the Board of Education, Ciccariello, Houck, Reina, Parker, and Ottepka because they filed a juvenile complaint and suspended Bryshawn due to his protected speech on social media.
Count Four - Violation New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 and the N.J.A.C. 16-7.5 against unspecified defendants because they filed a juvenile complaint and suspended Bryshawn for out-of-school conduct that did not ...