C.J. v. Willingboro Pub. Sch. Dist. Bd. of Educ.

C.J. individually and o/b/o A.D, Plaintiffs, v. Willingboro Public School District Board of Education, et al. Defendant.

No. 1:20-cv-04272-JHR-AMD

United States District Court, D. New Jersey

August 13, 2021

OPINION

HON JOSEPH H. RODRIGUEZ, U.S.D.J.

This matter is before the Court on the two motions [Dkt. 12, 15] filed by defendants Willingboro Public School District Board of Education (“the District”), Dr. Ronald G Taylor (“Taylor”), Kimberly Ash (“Ash”), Harold Booker (“Booker”) and Dr. Melody Alegria (“Alegria”) (collectively “Defendants”) to dismiss Plaintiffs C.J. and A.D.'s (collectively “Plaintiffs”) Complaint (the “Complaint”) [Dkt. 1]. For the reasons discussed below, the Court will dismiss Defendants' motions as moot and dismiss Plaintiffs' Complaint without prejudice for lack of subject matter jurisdiction.

I. Factual Background

“A.D. is a young woman who attended school in [the District] from 4^th-6^th grade and then 9^th-10^th grade.” [Compl. ¶ 3]. C.J. is A.D.'s mother who “has a power of attorney for A.D. for educational matters.” [Compl. ¶ 1]. A.D. has been diagnosed with the following disabilities: hearing impairment in one ear; “adjustment disorder with mixed disturbances, persistent depression, with a history of anxiety.” [Compl. ¶ 4]. Defendants in this case are the school district where A.D. attended school and District employees. Defendant Taylor is the former Superintendent of Schools for the District. [Compl. ¶ 7]. Ash is the Principal of Willingboro High School [Compl. ¶ 8] and Booker is an Assistant Principal. [Compl. ¶ 11]. Alegria “was the former Director of Special Services at Willingboro High School.” [Compl. ¶ 13].

The Complaint alleges that Defendants failed to properly create and implement A.D.'s individualized education program (“IEP”) consistent with her disabilities, provide appropriate school accommodations, and protect A.D. from peer harassment. It also alleges that Defendants improperly suspended A.D. from school for behaviors that resulted from these other failures. [Compl. ¶ 24]. With respect to the IEP, the Complaint alleges that A.D.'s IEPs only ever included her hearing impairment even though A.D. was diagnosed with multiple disabilities. As a result, A.D. did not receive services, supports, or accommodations for her other disabilities. [Compl. ¶¶ 23-24]. The Complaint acknowledges that A.D. had behavioral issues at school but alleges that Defendants failed to properly attribute these behaviors to A.D.'s disabilities because Defendants did not incorporate all of A.D.'s disabilities into her IEP. [Compl. ¶ 25]. Relatedly, Defendants did not “have a behavior plan in place” that addressed A.D.'s disabilities. [Compl. ¶ 27].

The Complaint also identifies several instances where A.D. was suspended from school inappropriately due to encounters with peer students. On January 18, 2018, A.D. used her phone to video record a peer and was suspended for four days after an investigation. [Compl. ¶ 29]. According to the Complaint, Alegria, Ash, and Booker “kept A.D. out of school for a few more weeks” beyond these four days while they purportedly tried to schedule a remand hearing. [Id.]. C.J. filed a request for emergency relief with an administrative law judge (“ALJ”) to have A.D. reinstated. [Dkt. 30-31]. The parties reached a settlement to have A.D. reinstated with a thirtyday loss of privileges, and to have the District provide A.D. with a hallway escort and a functional behavior assessment. [Compl. ¶ 31]. The Complaint suggests that the settlement only addressed this emergent issue.

On March 28, 2018, another student instigated a fight with A.D., but Ash, Booker, and Alegria advised that student's parents to file criminal charges against A.D. and suspended A.D. for three weeks. [Compl. ¶ 32-33]. Plaintiff filed for emergent relief to have A.D. returned to school and an ALJ ruled in A.D.'s favor, finding that the District “did not have a valid reason for keeping her out of school.” [Compl. ¶ 33]. The Complaint suggests that this ruling only addressed A.D.'s March 28, 2018 suspension.

On April 12, 2018, Plaintiff “filed for Due Process” with an ALJ to have A.D. return to school and to compel the District to comply with the terms of the prior settlement, among other things. [Compl. ¶ 34]. On April 13, 2018, the District filed an administrative request for emergent relief and due process to remove A.D. to an alternative school for forty-five days claiming that A.D. “was a danger to herself and others.” [Compl. ¶ 35]. Plaintiffs answered this request and cross-petitioned for due process. [Compl. ¶ 36]. An ALJ denied the District's request for emergent relief and ordered the District to “return A.D. back to her stay put placement in an inclusion room with in-class resources....” [Compl. ¶ 37]. The District withdrew its due process request. [Compl. ¶ 38]. Plaintiffs' two pending requests for due process were consolidated and the parties settled on June 19, 2019 after the district agreed to include all of A.D.'s disabilities in her IEP. [Compl. ¶ 40].

In the spring of 2019, C.J. reported to Ash, Booker, and Alegria that a peer student posted a video online stating that the student intended to fight A.D. [Compl. ¶ 42]. Defendants did not intervene and this student attacked A.D. and her sister. [Compl. ¶. 42]. A.D. and her sister “got into trouble at school including privileges taken away, ” while the other student was not punished. [Compl. ¶ 42].

On August 27, 2019, Plaintiffs filed another petition for due process to have the District pay for “independent educational, psychological, functional behavioral assessment, and neuropsychological evaluations.” [Compl. ¶ 43]. Plaintiffs did so after paying to have A.D. evaluated by an adolescent psychiatrist, who concluded that “A.D. has an anxiety disorder that is likely related to Post-Traumatic Stress Disorder or at least related to her experiences in school and school difficulties.” [Compl. ¶ 44-46].

Plaintiffs filed this Complaint against Defendants alleging that “A.D. was denied s free and appropriate public education (“FAPE”) in the Least Restrictive Environment (“LRE”) for failure to identify and classify her appropriately to include all of her disabilities, and failure to place her in an educational setting that would meet all of her needs.” [Compl. ¶ 48]. The Complaint alleges the following fourteen counts: (I) violation of 29 U.S.C. § 701 et seq., Section 504 of the Rehabilitation Act of 1973; (II) violation of the Americans with Disabilities Act and the Americans with Disabilities Amendment Act (“ADA”); (III) violations of the New Jersey Civil Rights Act and 42 U.S.C. § 1983; (IV) Individuals with Disability Education Act (“IDEA”); (V) prevailing party fees and costs under the IDEA; (VI) violation of the New Jersey Law Against Discrimination (“NJLAD”); (VII) NJLAD hostile learning environment; (VIII) aiding and abetting NJLAD violations; (IX) vicarious liability; (X) violation of the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:1-1 et seq.; (XI) negligence, negligent hiring, and retention; and (XII) negligence and negligent supervision; (XIII) intentional infliction of emotional distress; and (XIV) violations of 42 U.S.C. § 1983, the 14th Amendment, procedural due process, and equal protection rights.

II. Procedural History

Plaintiffs filed this case alleging that this Court has federal question jurisdiction under 28 U.S.C. § 1331 to hear this case based on Plaintiffs' federal statutory and constitutional claims. [Compl. ¶ 16]. Defendants filed their first motion to dismiss certain claims from the Complaint on September 23, 2020. [Dkt. 5]. The Court administratively terminated this case on October 6, 2020 while the parties participated in mediation in a related case before Judge Bumb involving A.D.'s sister. [Dkt. 6, 7]. The parties did not resolve their dispute in mediation, and Defendants refiled their motion to dismiss on March 19, 2021. [Dkt. 8, 12].

After Defendants refiled their motion to dismiss, A.D. reached eighteen years of age. On May 10, 2010, Defendants filed a second motion to dismiss C.J. from the case as an improper party because A.D. is no longer a minor child. [Dkt. 15].

III. Administrative Exhaustion

Before the Court considers Defendants' motions, the Court must first confirm that Plaintiffs have exhausted the administrative remedies available to them under the IDEA and, therefore, that the Court has subject matter jurisdiction over this case. S.B. v. Trenton Bd. of Educ., No. CIV.A. 13-0949 FLW, 2014 WL 5089716, at *3 (D.N.J. Oct. 9, 2014) (“Exhaustion is required before the [IDEA] grants subject matter jurisdiction to the district court.”); see also J.Q. v. Washington Twp. Sch. Dist., 92 F.Supp.3d 241, 252-53 (D.N.J. 2015) (dismissing Rehabilitation Act and ADA claims for lack of subject matter jurisdiction for failure to exhaust administrative remedies under the IDEA).

Defendants do not contest subject matter jurisdiction for failure to exhaust administrative remedies, presumably because Defendants agreed in a June 2019 settlement agreement between the parties “not to challenge jurisdiction or exhaustion of administrative remedies” in future litigation. [Compl. ¶ 101]. But this agreement not to challenge subject matter jurisdiction cannot confer subject matter jurisdiction on this court where none exists. In re Combustion Eng'g, Inc., 391 F.3d 190, 228 (3d Cir. 2004), as amended (Feb. 23, 2005) (“‘[S]ubject matter jurisdiction cannot be conferred by consent of the parties. Where a court lacks subject matter jurisdiction over a dispute, the parties cannot create it by agreement....'” (quoting In re Resorts Int'l, Inc., 372 F.3d 154, 161 (3d Cir. 2004))). To that end, the Court has “an independent...