United States District Court, D. New Jersey
P.K., by and through his legal guardians ELEFTHERIA KOUTZIS and KYRIACOS KOUTZIS, Plaintiffs,
HAROLD MELLEBY, JR., individually and in his official capacity; EASTERN REGIONAL HIGH SCHOOL; EASTERN CAMDEN COUNTY REGIONAL SCHOOL DISTRICT; EASTERN CAMDEN COUNTY REGIONAL BOARD OF EDUCATION, and ROBERT M. TULL, JR., individually and in his official capacity, Defendants.
LONDAR DANIEL EDWARD RYBECK GEORGIOS FARMAKIS WEIR &
PARTNERS LLP Attorneys for Plaintiff P.K., by and through his
legal guardians, Eleftheria and Kyriacos Koutzis.
RICHARD L. GOLDSTEIN, EDWARD J. PARK, MARSHALL, DENNEHEY,
WARNER, COLEMAN & GOGGIN, PA Attorneys for Defendants
Harold Melleby, Jr., Eastern Regional High School, Eastern
Camden County Regional School District, Eastern Camden County
Regional Board of Education, and Robert M. Tull.
L. HILLMAN, U.S.D.J.
case is an Individual with Disabilities Education Act
(“IDEA”) and 42 U.S.C. § 1983 case
concerning whether a free appropriate public education
(“FAPE”) was given to a minor plaintiff, P.K.,
and whether an allegedly false police report made by school
officials violated Plaintiff's constitutional or
statutory rights. Presently before the Court is
Defendants' Motion to Dismiss, Plaintiff's
Cross-Motion to Amend the Complaint (“Motion to
Amend”), and Plaintiff's Amended Cross-Motion to
Amend the Complaint (“Amended Motion to Amend”).
For the reasons discussed herein, the Court will grant in
part and deny in part Defendants' Motion to Dismiss, deny
without prejudice Plaintiff's Motion to Amend, and grant
in part and deny in part without prejudice Plaintiff's
Amended Motion to Amend.
our brief recitation of the facts from Plaintiff's
Complaint and proposed Amended Complaint. Plaintiff, P.K.,
was a freshman at Defendant Eastern Regional High School
(“Eastern”) in 2017. His parents are Kyriacos and
Eleftheria Koutzis (respectively, “Mr. Koutzis”
and “Mrs. Koutzis”). Defendant Eastern is within
the Defendant Eastern Camden County Regional School District
(the “District”) and is included within the
purview of Defendant Eastern Camden County Regional School
District Board of Education (the “Board”).
Defendant Robert M. Tull, Jr. is the Principal of Eastern and
Harold Melleby, Jr. is the Superintendent of the District.
August 29, 2017, Mrs. Koutzis sent a letter to Defendants
detailing that P.K.'s psychiatrist, Adam D. Hauser, M.D.,
diagnosed P.K. with (1) panic disorder, (2) agoraphobia, and
(3) generalized anxiety disorder. The letter also stated that
Dr. Hauser indicated P.K. expressed symptoms consistent with
autism spectrum disorder. Defendants did nothing in response
to this letter. Mrs. Koutzis sent another letter on October
24, 2017. In that letter, Mrs. Koutzis indicated that Dr.
Hauser had additionally diagnosed P.K. with (a) autism
spectrum disorder and (b) attention-deficit disorder and
requested Defendants prepare a Section 504 Individual
Accommodation Plan (an “IAP”). Plaintiff alleges
Defendants created a “sham” IAP in November 2017,
which did not address either P.K.'s autism or his
anxiety. (Pl.'s Compl. ¶ 15.)
December 4, 2017, Defendant Tull found P.K. and another
student in the bathroom at Eastern. The other student was
smoking an electronic cigarette. Defendant Tull ordered the
two students to come with him to his office. Defendant Tull
alleged while the three were walking to his office that P.K.
called Defendant Tull a “bitch.” (Pl.'s
Compl. ¶ 22.) P.K. denies calling Defendant Tull a
“bitch.” A search of P.K.'s belongings
revealed he did not possess an electronic cigarette.
Defendant Tull suspended P.K. for two days.
Koutzis was told that P.K. had received a two-day suspension,
asked to pick him up, and advised the suspension could be
appealed to Defendant Melleby. She appealed. The appeal was
set for December 8, 2017. In advance, Mrs. Koutzis wrote a
letter to Defendant Melleby stating the following:
• P.K.'s suspension was without justification;
• P.K.'s suspension was discriminatory; and
• Defendants had not accommodated P.K.'s autism,
specifically the social communication disorder aspect, which
“prevents P.K. from processing intimidating language
(Pl.'s Compl. ¶ 30.a.-c.)
his parents (Mr. Koutzis by phone), and Defendants Melleby
and Tull were present at the meeting on December 8, 2017 (the
“Appeal”). According to Plaintiff's
allegations, the meeting was unproductive. Plaintiff claims
Defendant Melleby was unprofessional and raised his voice,
interrupted Mrs. Koutzis, and slammed books. P.K. allegedly
called Defendant Melleby a “baby, ” but did not
threaten him. (Pl.'s Compl. ¶ 38.) Defendant Melleby
ordered Plaintiff and Mrs. Koutzis to “vacate the
premises and stated the police were being called.”
(Pl.'s Compl. § 41.) P.K. left, Mrs. Koutzis stayed.
After Defendants Melleby and Tull threatened to call the
police a second time, Mrs. Koutzis left the office. Plaintiff
and Mrs. Koutzis exited the building, but could not leave the
premises because their car was “intentionally blocked
by Defendants' employee's car.” (Pl.'s
Compl. ¶ 45.)
alleged argument between Defendant Melleby and Mrs. Koutzis
continued outside. Defendant Melleby allegedly insulted both
Plaintiff and his mother. Shortly thereafter, the Voorhees
Police Department (“VPD”) arrived and stated they
were responding to a call that Plaintiff had a gun. Plaintiff
was put on the ground, searched, handcuffed, and detained.
No. gun was found. Plaintiff was released from police custody
and allowed to return home. The VPD did not file any criminal
charges against Plaintiff at that time.
December 12, 2017, Defendant Melleby sent a letter to
Plaintiff and his parents advising them that Plaintiff was to
start homebound instruction immediately because of his
“misconduct and actions.” (Pl.'s Compl.
¶ 54.) Further, Defendant Melleby stated Plaintiff's
“enrollment status w[ould] be reviewed following the
adjudication of charges filed with the [VPD].”
(Pl.'s Compl. ¶ 55.) Plaintiff claims this was a
knowingly false and malicious statement, as no charges had
been filed at that time.
Melleby also advised Plaintiff and his parents that Plaintiff
had the right to appeal this decision at the Board's
meeting of December 20, 2017 (the “Board
Meeting”). On December 19, 2017, Plaintiff's
counsel advised Defendant Melleby that Plaintiff would be
appealing this decision at the Board Meeting. On December 20,
2017, Plaintiff's counsel appeared on his behalf at the
Board Meeting. Plaintiff claims his counsel was limited in
his ability to cross-examine Defendant Tull by the
Board's solicitor, Anthony Padovani. Plaintiff also
claims that Defendant Tull stated Plaintiff did not have a
gun and that aggravated assault charges had been filed on
December 8, 2017. Defendant Tull stated he believed there was
“some sort of miscommunication with the police.”
(Pl.'s Compl. ¶ 66.)
December 22, 2017, the VPD called Mrs. Koutzis and notified
her that Defendant Melleby had filed a criminal citizen's
complaint against P.K. for third-degree terroristic threat.
P.K. was processed on December 26, 2017 and formally charged.
According to Defendants, Plaintiff “through his
counsel, accepted a plea deal analogous to a pretrial
intervention in adult criminal proceedings.”
(Defs.' Mot. to Dismiss 7.) No. party provides
documentation evidencing this assertion.
December 8, 2017, Plaintiff was banned from school premises
and received homebound instruction. Plaintiff complains of
the adequacy of homebound instruction, as it did not include
in-person lessons, devices compatible with the software used
for homebound instruction, or an IAP.
January 12, 2018, Mr. and Mrs. Koutzis filed a complaint on
behalf of Plaintiff P.K. against Defendants. The Complaint
alleges ten counts under 42 U.S.C. § 1983 - including a
Monell claim, (Counts I, II, and VIII), 42 U.S.C.
§ 1985 (Count III), the Americans with Disabilities Act
(the “ADA”), 42 U.S.C. § 12132 (Count IV),
the Individuals with Disabilities Education Act (the
“IDEA”), 20 U.S.C. § 1400, et seq.
(Count IX), the Rehabilitation Act, referred to here also as
Section 504 (Count X), common law false arrest (Count V), and
intentional and negligent infliction of emotional distress
(Count VI and VII).
same day, Plaintiff requested the Court to enter a temporary
restraining order or preliminary injunction requiring
Defendants to reinstate him to Eastern immediately. This
Court held a hearing on this application on January 23, 26,
and 29 2018 as well as on February 26, 2018. During those
hearings, representations were made by counsel, but no live
testimony was taken. Testimony was submitted in the form of
affidavits as requested by the Court. Of relevance to the
matters presently under consideration, the Court
preliminarily determined that Defendants had not complied
with statutory requirements as to Plaintiff's indefinite
suspension and that, as a result, exhaustion of
administrative remedies was excused as to that claim. As a
result of these proceedings, the parties agreed to reinstate
Plaintiff to Eastern immediately and agreed to prepare an IEP
for Plaintiff, subject to certain steps which Defendants
claim Plaintiff has yet to take. (Defs.' Mot. to Dismiss
7.) Defendants state Plaintiff is still currently enrolled in
Eastern. (Defs.' Mot. to Dismiss 7.)
November 30, 2018, Defendants filed their Motion to Dismiss.
On January 15, 2019, Plaintiff filed the Motion to Amend. On
March 25, 2019, Plaintiff filed the Amended Motion to Amend.
All motions have been fully briefed and are ripe for
Subject Matter Jurisdiction
Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and 1367.
Standard for Motion to Dismiss
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
in original) (citations omitted) (first citing Conley v.
Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd.
of Psychiatry & Neurology, Inc., 40 F.3d 247, 251
(7th Cir. 1994); and then citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a court must
take three steps. First, the court must “tak[e] note of
the elements a plaintiff must plead to state a claim.”
Second, the court should identify allegations that,
“because they are no more than conclusions, are not
entitled to the assumption of truth.” Third,
“whe[n] there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)
(alterations in original) (citations omitted) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679
(2009)). A court may “generally consider only the
allegations contained in the complaint, exhibits attached to
the complaint and matters of public record.”
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(citing Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claim.” Twombly, 550 U.S. at 563 n.8
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236
(1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard
for ‘all civil actions' . . . .”); Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(“Iqbal . . . provides the final nail in the
coffin for the ‘no set of facts' standard that
applied to federal complaints before
Twombly.”). “A motion to dismiss should
be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
face.'” Malleus, 641 F.3d at 563 (quoting
Twombly, 550 U.S. at 570).
Motion to Dismiss
Motion to Dismiss can be categorized into three overall
arguments. First, Defendants argue Plaintiff's IDEA and
Section 504 claims should be dismissed because of
Plaintiff's failure to exhaust administrative remedies.
Second, Defendants argue Plaintiff's claims stemming from
the alleged false arrest should be dismissed because of
application of the Heck doctrine or because no state
action was involved. Third, Defendants argue Plaintiff's
state law tort claims should be dismissed because ...