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K.J. v. Greater Egg Harbor Regional High School District Board of Education

United States District Court, D. New Jersey, Camden Vicinage

December 16, 2019

K.J., individually and on behalf of K.J., Jr., et al., Plaintiffs,


          ROBERT B. KUGLER United States District Judge

         This matter comes before the Court upon Plaintiffs' Motion for Summary Judgment (Doc. 173) and Defendants' Motion for Summary Judgment (Doc. 174). For the reasons contained herein, Plaintiffs' motion is DENIED and Defendants' motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         This matter arises out of events that took place at a New Jersey high school days after the tragic shooting at Sandy Hook Elementary School in Newtown, Connecticut on December 14, 2012. (Doc. 174-2 (“Def. Mot.”) at 6.)[1] Three days after Sandy Hook, a high school teacher noticed a drawing in the sketchbook of her student, K.J., Jr. (“K.J.”), that concerned her. When school officials reviewed K.J.'s sketchbook they found a drawing of what appeared to be a weapon, which prompted them to detain K.J. and call the police. The police searched K.J.'s home and found parts that might have been used to make the weapon depicted in the drawing. Shortly thereafter, K.J. was arrested and placed in a juvenile detention facility, where he remained for over two weeks. Upon his release, he was placed under house arrest and forced to wear an ankle monitor until, several months later, the judge presiding over his trial dismissed one of the charges entirely and found K.J. not guilty on the remaining counts. K.J.'s family later brought this action alleging that Defendants wrongfully deprived K.J. of lengthy periods of his high school education and violated multiple federal and state laws.

         A. The Parties

         Plaintiffs are K.J. Jr.'s parents (K.J. Sr. and T.J.) and siblings (K.J. and C.J.); Plaintiffs bring their claims on behalf of K.J. as well as individually. (Doc. 65, Fifth Amended Complaint (“FAC”) ¶A.) Many Defendants in this action were terminated at earlier points, [2] but a large number still remain: Greater Egg Harbor Regional High School Board of Education (“Egg Harbor”) is a public school district located in New Jersey. (Id. ¶B.) Dr. Steve Ciccariello (“Ciccariello”) is the Superintendent of Schools at Egg Harbor. (Id. ¶C.) John Ragan (“Ragan”) is the District Supervisor of Special Services and is the Anti-Bullying Coordinator for Egg Harbor. (Id. ¶D.) Erin Byrnes is a school psychologist and Anti-Bullying Specialist at Cedar Creek High School (“Cedar Creek”), a school in Egg Harbor. (Id. ¶E.) James Reina (“Reina”) is the Principal of Cedar Creek, (id. ¶F), and Michael McGhee (“McGhee”) is the Vice Principal and Supervisor of Special Education at Cedar Creek. (Id. ¶H.) Scott Parker (“Parker”) is or was also Vice Principal for Cedar Creek and is the Anti-Bullying Liaison for Cedar Creek. (Id. ¶I.) Christine Reina (“Christine”) is the Homebound Instruction Coordinator for Cedar Creek. (Id. ¶G.) Megan Hallman (“Hallman”) was K.J.'s geometry teacher at Cedar Creek. (Id. ¶J.) Gregory Ferree (“Ferree”) is a German teacher and Homebound instructor at Cedar Creek. (Id. ¶K.) Paula Londono (“Londono”) is a guidance counselor employed at Cedar Creek. (Id. ¶M.) Cori Koury (“Koury”) and Maggie Holmes (“Holmes”) were both case managers on the Child Study Team at Cedar Creek. (Id. ¶N.) Karen Cavalieri (“Cavalieri”) is the Supervisor of the Guidance Department at Cedar Creek. (Id. ¶O.) Erin Hoban (“Hoban”) is an Art Teacher at Cedar Creek. (Id. ¶P.) Stephanie Tarr (“Tarr”) is an Event Coordinator with Egg Harbor. (Id. ¶Q.) Edward Ottepka (“Ottepka”) is a school resource officer at Cedar Creek, and Ramone Valentine (“Valentine”) is a school security officer at Cedar Creek. (Id. ¶R.)

         B. Factual History

         Beginning in 2010, K.J. attended Cedar Creek, a magnet program for engineering. (Doc. 173-2 (“Pl. SOF”) ¶32.) Though gifted in the areas of art, chemistry, and engineering, (id.), K.J. was also a student with disabilities who had been classified by Egg Harbor as “Other Health Impaired” for Attention Deficit Disorder. (Id. ¶13.) As a result, K.J. had been given an Individualized Education Program (“IEP”). (Id.) The IEP noted that K.J. doodled and drew in class; Plaintiffs allege this activity allowed K.J. to express himself, as well as concentrate and focus in class, while Defendants allege that this was more often a source of distraction. (Id. ¶33; Doc. 169-1 (“Def. RSOF”) ¶33.) K.J. carried a personal sketchpad with him at school, in which he kept his drawings and doodles. (Pl. SOF ¶51.)

         Prior to the drawing incident, K.J. had a separate disciplinary incident while attending Cedar Creek. (Pl. SOF ¶34.) On October 20, 2011, while on the school bus, K.J. attempted to recreate a YouTube video in which a person sprayed Axe deodorant on his arm and lit it with a lighter but was protected from being burned because of the deodorant's flame-retardant properties. (Pl. SOF ¶34; Doc. 174-3 (“Def. SOF”) ¶6.) K.J. was not as fortunate in his attempt, and ended up burning his arm. (Id.) After his experiment, K.J. was taken to the nurse and his backpack was searched, resulting in school officials finding two “mini pocketknives, a piece of metal another student found on the bus and gave to KJ, ” which Defendants describe as a “shiv, ” and an Exacto knife. (Pl. SOF ¶35; Def. SOF ¶35.) As a result of the fire and weapons, K.J. was removed from school and suspended at first for nine days, and then placed on home instruction until the end of January 2012. (Id. ¶36.) K.J. was evaluated as a result of the incident on October 26, 2011 by Dr. Hewitt, Egg Harbor's psychiatrist, who determined K.J. was not a danger to himself or others, and that K.J. had Asperger's Syndrome. (Id. ¶41.)

         On December 14, 2012, a tragic shooting occurred at Sandy Hook Elementary School in Newtown, Connecticut. (Pl. SOF ¶43.) Three days later, on December 17, 2012, Hallman noticed a drawing that K.J. was creating during geometry class; Plaintiffs claim the drawing she saw was a “spaceman, ” while Defendants claim she saw a drawing of a “flame poofer.” (Id. ¶44; Def. RSOF ¶44.) Hallman communicated her concern about the content of K.J.'s drawings to McGhee, who called K.J. out of class and took him to the Vice Principal's office late the next day, December 18, 2012. (Pl. SOF ¶45; Def. SOF ¶45.)

         While K.J. was in the Vice Principal's office, McGhee repeatedly told him that he was not in trouble, though Valentine, the school safety officer, remained in or around McGhee's office the entire time. (Pl. SOF ¶47.) McGhee allegedly manipulated K.J. into showing him the drawings in K.J.'s sketchpad by leading K.J. to believe that he was genuinely interested in K.J.'s artwork and designs. (Id. ¶49.) In K.J.'s sketchpad there was an updated drawing of a superhero glove with a flame coming out of it, a concept drawing which K.J. allegedly started two years earlier based on the Iron Man movie.[3] Plaintiffs allege that this drawing was done solely at K.J.'s home, was contained in K.J.'s personal, private sketchbook, and that K.J. never intended for anyone to see it. (Id. ¶50.)

         The parties' stories diverge at this point. Defendants claim that after reviewing the drawings in K.J.'s sketchbook, McGhee asked K.J. if he had any items with him that were not allowed in school. In response, K.J. allegedly dumped the contents of his bookbag and pockets on McGhee's desk. (Def. SOF ¶¶20-21.) In contrast, Plaintiffs claim that K.J.'s bag was searched without his consent. After this, McGhee kept K.J. in his office and called K.J.'s mother, T.J., to inform her that K.J. was in his office but was not in trouble. (Id. ¶52.) Defendants allege that, sometime after McGhee's conversation with T.J., K.J. told McGhee he “was actually building the flame poofer weapon at home.” (Def. RSOF ¶52.) Defendants claim this prompted McGhee and Reina to contact the police department. (Id.) In contrast, Plaintiffs claim that McGhee contacted the local police department while he was still on the phone with T.J., and intentionally kept her on the phone until the police arrived at her home. (Pl. SOF ¶53.) Plaintiffs state that the fire department, EMS, and bomb squad also arrived at Plaintiffs' home soon after the local police. (Id.)

         K.J.'s father consented to a police search of K.J.'s home, though Plaintiffs claim he only did so because McGhee “deceived [T.J.] into believing that their son was not in any trouble.” (Pl. SOF ¶54.) During their search, the police found items such as wires, thermite chemical, and switches. (Id. ¶55.) Plaintiffs claim these items were part of K.J.'s science and engineering homework. (Id.) While the police were searching Plaintiffs' home, Ottepka used his private car to transport K.J. to the police station. (Id. ¶56.) Hours later, the police took K.J. home. (Id. ¶57.)

         Around this time, Ciccariello made the decision to issue an “All Call” to all families in the school district notifying them of what occurred. (Pl. SOF. ¶292.) County law enforcement brought bomb-sniffing dogs to the school to do a sweep, but did not find anything. (Doc. 173-26 (“Pl. Ex. O”) at 47.)

         At some point after the search of Plaintiffs' home, the Galloway Police Department contacted the Atlantic County Prosecutor's Office. (Pl. SOF ¶58.) K.J. was charged with a crime and placed in the Harborfield Juvenile Detention Center (“Harborfield”), where he spent seventeen days. (Id. ¶61.) While at Harborfield, Plaintiffs allege that K.J. was strip searched and cavity searched. (Id.) Upon K.J.'s release from Haborfield he was placed under house arrest: he was confined to his home and required to wear an ankle bracelet from early January 2013 until May 23, 2013. (Id. ¶63.) In January 2013, while K.J. was on house arrest, K.J.'s German tutor, Ferree, saw another one of K.J.'s drawings and attempted to confiscate it from Plaintiffs' home, allegedly on orders from Parker. (Id. ¶40.)

         A criminal trial was held before Judge Jackson on May 21 and May 22, 2013. (Pl. SOF ¶64.) Before the trial began, Judge Jackson dismissed the second charge against K.J. (Id.) After expert testimony was taken, Judge Jackson found K.J. not guilty of the remaining charges against him because K.J. did not have the requisite malicious intent needed to substantiate the charges. (Id. ¶65.) Judge Jackson also determined, based on expert reports from the State and on behalf of K.J., that the glove device found in K.J.'s home would not constitute a weapon, even upon completion. (Id.) K.J.'s ankle bracelet was removed the following day. (Id. ¶66.)

         While K.J. was on house arrest, he was placed on home instruction. (Pl. SOF ¶70.) After his charges were dismissed, the Child Study Team met, classified K.J. as having Asperger's Syndrome and ADHD and determined that K.J. should be placed in an “out District placement at the YALE School or Coastal Learning Center.” (Def. SOF ¶¶33-34.) Plaintiffs disagreed with the recommendation and filed a “Due Process Petition” pursuant to the Individuals with Disabilities Education Act (“IDEA”) with the Office of Special Education in the New Jersey Department of Education in January 2014. (Doc. 173-6, “Due Process Petition.”) This administrative proceeding resulted in an eventual settlement, approved by Administrative Law Judge Bruce Gorman, that allowed K.J. to return to Cedar Creek in March 2014 on a “shortened day program.” (Doc. 173-7, “Settlement Agreement”; Def. SOF ¶¶35-37; Pl. SOF ¶72.)

         Plaintiffs add that, in addition to keeping K.J. from attending Cedar Creek from December 2012 to March 2014, Defendants also interfered with K.J.'s education in other ways. For example, in fall 2013, allegedly on directions from Reina, Tarr prohibited K.J. from attending a class trip to the Smithsonian that he had already paid the deposit for, alerting the venue that he was a “behavior issue.” (Pl. SOF ¶¶340-341.) Plaintiffs also assert that, the year after K.J. graduated high school, a current Cedar Creek student invited him to prom, but Reina prohibited K.J. from attending. (Pl. SOF ¶¶45-46.) Further, at many points in their statement of facts, Plaintiffs generally aver that Egg Harbor harassed, intimidated, bullied, retaliated against, and cyber-bullied K.J., failed to comply with the mandatory investigation requirements under the New Jersey Anti-Bullying Bill of Rights, and created a hostile school environment.

         C. Procedural History

         Plaintiffs initially filed this case in January 2014, and it has since become a tangled web of parties and motions. In the operative complaint-the Fifth Amended Complaint (“FAC”)- Plaintiffs asserted twenty counts against a litany of defendants. Defendants then moved to dismiss the FAC, which this Court's December 30, 2016 Opinion granted in part and denied in part, resulting in the dismissal of some of the twenty counts. (Doc. 88.) Additionally, several Defendants have been terminated since the FAC was filed. As it currently stands, Defendants in this case include: Egg Harbor; the “Child Study Team at Cedar Creek High School”; and individual Defendants Dr. Steve Ciccariello, John Ragan, Erin Byrnes, James Reina, Christine Reina, Michael McGhee, Scott Parker, Megan Hallman, Gregory Ferree, Maggie Holmes, Paula Londono, Cori Koury, Karen Cavalieri, Erin Hoban, Stephanie Tarr, Edward Ottepka, and Ramone Valentine.

         The surviving counts in the FAC are as follows: Count I, violation of Section 504 of the Rehabilitation Act; Count II, violation of the Americans with Disabilities Act (“ADA”), Count III, violation of the New Jersey Civil Rights Act (“NJCRA”); Count IV, stating that Defendants are “Persons” under 42 U.S.C. § 1983;[4] Count V, § 1983 claim for violation of the Fourth Amendment; Count VI, § 1983 claim for violation of the First Amendment; Count VII, § 1983 claim for violation of the Fourteenth Amendment; Count XI, New Jersey Law Against Discrimination (“NJLAD”) disability discrimination; Count XII, NJLAD hostile learning environment; Count XIII, NJLAD “aiding and abetting”; Count XIV, NJLAD retaliation; Count XV, vicarious liability; Count XVI, intentional infliction of emotional distress; and Count XX, negligence, gross negligence, and respondeat superior.

         Plaintiffs and Defendants have both moved for summary judgment on all counts. (Docs. 173, 174.)


         The court should grant a motion for summary judgment when the moving party “shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is “material” to the dispute if it could alter the outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Matsushida Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)). In deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility determinations are for the jury, the non-moving party's evidence is to be believed and ambiguities construed in his favor. Id. at 255; Matsushida, 475 U.S. at 587.

         Although the movant bears the burden of demonstrating that there is no genuine issue of material fact, the non-movant likewise must present more than mere allegations or denials to successfully oppose summary judgment. Anderson, 477 U.S. at 256. The nonmoving party must at least present probative evidence from which jury might return a verdict in his favor. Id. at 257. The movant is entitled to summary judgment where the non-moving party fails to “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


         A. Claims under Section 504 and the ADA

         Plaintiffs bring Count I, Violation of Section 504 of the Rehabilitation Act, and Count II, Violation of the ADA, against Egg Harbor only, seeking compensatory damages. (FAC ¶¶51- 65.).[5] Plaintiffs and Defendants both move for summary judgment on these claims. The ADA and Rehabilitation Act both “prohibit certain disability-based discrimination.” Weidow v. Scranton Sch. Dist. 460 Fed.Appx. 181, 184 (3d Cir. 2012). Because the Third Circuit interprets the ADA “in a manner consistent with the Rehabilitation Act, ” these counts are analyzed together. Id.

         To make out a prima facie claim for discrimination under the ADA or Rehabilitation Act, the plaintiff must establish that (1) he “has a disability” (2) he is “otherwise qualified to participate in the services, programs, and activities of the school, ” (3) the program receives “federal financial assistance, ”[6] and (4) he was “denied the benefits of” or “subject to discrimination” under the program because of his disability. 29 U.S.C. § 794(a); see also Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991); Weidow, 460 Fed.Appx. at 184-85. A plaintiff may not make out a claim “simply by proving (1) that he was denied some service and (2) he is disabled. The [school] must have failed to provide the service for the sole reason that the child is disabled.” Andrew M. v. Delaware Cty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 350 (3d Cir. 2007).

         Within the Third Circuit, “a plaintiff seeking compensatory damages on a § 504 claim must also prove that the discrimination at issue was intentional.” Shadie v. Hazleton Area Sch. Dist., 580 Fed.Appx. 67, 70 (3d Cir. 2014). To show “intentional discrimination, ” the plaintiff must offer “proof that, at a minimum, the school district exhibited ‘deliberate indifference' to the underlying act of discrimination.” Id. A plaintiff can establish deliberate indifference by showing “(1) knowledge that a federally protected right is substantially likely to be violated and (2) failure to act despite that knowledge.” Id. (emphasis in original).

         Here, the “program” Plaintiffs allege K.J. was denied access to was education at Cedar Creek during two periods: after the lighter incident on the bus in October 2011, and after the drawing incident in December 2012. (Def. Mot. at 10; Doc. 173-1 (“Pl. Mot.”) at 9.) They claim K.J. was discriminated against when he was kept out of school and placed on homebound instruction due to his disabilities-Asperger's Syndrome and ADHD-and the manifestations thereof. (Def. Mot. at 10.) In both incidents, the parties dispute element (4), whether he was “denied benefits of or subject to discrimination under the program.” Arguments specific to each incident are addressed below.

         October 20, 2011 Incident

         After the incident on October 20, 2011, in which K.J. lit his arm on fire and school officials found knives in his bag, K.J. was initially suspended for nine days. (Def. Mot. at 11.) McGhee, Ragan, and Reina then met with K.J.'s parents during an “administrative review hearing” on November 3, 2011, and at that meeting determined that K.J. should be placed on homebound instruction “for the remainder of the marking period, ” and could return to Cedar Creek in January 2012. (Id.; Doc. 173-12.)

         Plaintiffs allege that the decision to keep K.J. from attending Cedar Creek between October 20, 2011 and January 2012 violated the ADA and Rehabilitation Act because K.J.'s suspension and change in placement were due to the manifestation of his disability. Plaintiffs argue that K.J.'s disability (Asperger's Syndrome) caused him to be unaware that it was wrong to bring knives to school. (Doc. 168 (“Pl. Resp.”) at 4.) Thus, bringing knives to school was allegedly a manifestation of K.J.'s disability. As support, Plaintiffs offer the October 26, 2011 psychiatric evaluation conducted by Dr. James Hewitt following the lighter incident. (Pl. Resp. at 5; Doc. 173-9.) Dr. Hewitt stated in his evaluation, “I think what [K.J.] did has to be understood in the nature of his disability and, in part, was a manifestation of his disability . . . His inability to see the context of what it meant to take knives to school is a function of his disability.” (Id.)

         Defendants argue that Plaintiffs offer no evidence of discrimination because they fail to show that K.J. was suspended due to his disability, and they claim K.J. was actually suspended for bringing weapons to school. (Def. Mot. at 13.) Defendants add that, while Plaintiffs may argue that the homebound instruction K.J. received for the period of his suspension was insufficient, they cannot show that it “amounted to a denial of access to a public education.” (Def. Mot. at 13; Pl. Resp. at 5.) Plaintiffs point out that suspending K.J. for bringing weapons to school is suspending him because of his disability, per Dr. Hewitt's report. They add that Defendants failed to hold a “manifestation hearing pursuant to the IDEA's Regulations Sections 300.530 (c), (e) and (f) to determine if” K.J.'s actions were actually a manifestation of his disabilities.[7] (Pl. Mot. at 10.) Defendants argue that the November 3, 2011 administrative review hearing fulfilled the same procedural requirements as a manifestation hearing, and nonetheless resulted in K.J.'s being placed on homebound instruction. (Def. Reply at 4.)

         Although Defendants argue that the manifestation hearing and the administrative review hearing are essentially the same, it is unclear from the record what procedures were followed or what occurred at the administrative review hearing. Two pieces of evidence are provided regarding the hearing: (1) a “teacher response form” (Doc. 173-12 at 37), in which seven teachers each detail their observations of K.J.'s effort in class, academics, attitude, and current grade, and (2) a letter from Reina that purports to “summarize the Administrative Review meeting.” (Doc. 173-12 at 40.) Reina's summary states that those present at the meeting “thoroughly reviewed [K.J.'s] academic, attendance, and discipline records. (Id.) It makes no mention of K.J.'s disabilities or Dr. Hewitt's report.

         The Court finds that a factual dispute thus exists as to whether Defendants considered whether K.J.'s actions were a manifestation of his disability before changing his educational placement, and consequently whether K.J.'s suspension was based on his disability. While a manifestation hearing is not explicitly required under Section 504, it is unclear whether Dr. Hewitt's report was even considered at all, and whether its findings that K.J.'s actions were manifestations of his disability were adopted or rejected. Thus, it is also unclear whether Defendants intentionally suspended K.J. and placed him on homebound instruction for actions they believed or knew were a manifestation of his disability.

         Because this factual issue exists, the Court declines to grant summary judgment for either party on Counts I and II as related to the October 26, 2011 incident. See Gutin v. Washington Tp. Bd. of Educ., 467 F.Supp.2d 414, 429 (D.N.J. 2006) (denying summary judgment where it would require the court's determination of whether a student's behavior was a manifestation of his disability); see also J.S.X. Through D.S.X. v. Foxhoven, 361 F.Supp.3d 822, 837 (S.D. Iowa 2019) (denying summary judgment upon finding “a genuine factual dispute as to whether Plaintiffs were isolated based on legitimate safety concerns, or instead based on manifestations of their disabilities that neither implicated those concerns nor warranted the restrictive measures utilized by the School”).

         December 2012 Incident

         In December 2012, Hallman claims she saw K.J. drawing a “flame poofer” weapon in close temporal proximity to the Sandy Hook incident. (Def. Mot. at 12.) Though Plaintiffs argue that Hallman only saw K.J. drawing a “spaceman, ” Defendants allege that further investigation revealed K.J. was also drawing a nail bomb and remote detonator, and that K.J. was building a “flame poofer” at home. (Id.) The drawings and ensuing events resulted in criminal charges that were not dismissed until May 2013. (Id. at 13.)

         Plaintiffs argue that K.J. should have been allowed to return to Cedar Creek upon the dismissal of charges in May 2013, but that Defendants violated the ADA and Rehabilitation Act by barring K.J. from returning until March 2014 and keeping him on homebound instruction in the interim. Plaintiffs claim Defendants sought to keep K.J. out of Cedar Creek due to his drawings, an alleged manifestation of his disabilities. Specifically, they argue that Defendants discriminated against K.J. for his “clear inability to understand [the drawings'] alleged inappropriateness in a school setting, ” which “was a well-documented manifestation of his disabilities/handicaps.” (Pl. Resp. at 7.) Defendants contend that they were not ...

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