Doe v. Bd. of Educ.

1

JOHN DOE, Plaintiff, v. HILLSBOROUGH TOWNSHIP BOARD OF EDUCATION, et al., Defendants.

Civil Action No. 23-22597 (GC) (TJB)

United States District Court, D. New Jersey

August 30, 2024

NOT FOR PUBLICATION

MEMORANDUM OPINION

Georgette Castner, United States District Judge

THIS MATTER comes before the Court upon three Motions to Dismiss pursuant to Federal Rules of Civil Procedure (Rules) 12(b)(1) and 12(b)(6): the first filed by Defendants Hillsborough Education Association (HEA), Henry Goodhue, and Amy Salinger (the HEA Defendants) (ECF No. 5); the second by Defendants Hillsborough Township Board of Education (the Board), Lisa Antunes, Mike Callahan, Kim Feltre, Gregory Gillette, Aiman Mahmoud, and Jean Trujillo (the Board Defendants) (ECF No. 10); and the third by Defendants Hillsborough Township Police Department (HTPD), Dave Fisher Thomas M. McLain, and Mike McMahon (the Police Defendants) (ECF No. 11). Plaintiff opposed (ECF No. 19), and Defendants replied (ECF Nos. 20 & 21). Plaintiff also filed an unopposed motion to substitute Defendant HTPD with Hillsborough Township. (ECF No. 19.) The Court carefully considered the parties' submissions and decides the Motions without oral argument pursuant to Rule 78(b) and Local Civil Rule 78.1(b). For the reasons set forth below and other good cause shown, Defendants' Motions to Dismiss are GRANTED and Plaintiff's Motion to Substitute Defendants is DENIED AS MOOT.

I. BACKGROUND

A. Factual Background^[1]

Plaintiff is a resident of Hillsborough Township, New Jersey. (ECF No. 1 at 1.^[2]) This matter arises from Plaintiff's allegation that his anonymous emails sent to members of the Board and HEA^[3] expressing his concern over school policy led to a criminal charge of harassment in retaliation of his rights under the First Amendment to the United States Constitution. (Id. at 1-2.)

From April to June 2021, Plaintiff sent “numerous” emails to members of the Board and HEA voicing his objections to their “clandestine implementation of a ‘detracking' policy” in the Hillsborough Township School District. (Id. at 2, ¶ 75.) According to Plaintiff, “tracking” is an “education policy” that schools use to group students based on their academic abilities. (Id. ¶¶ 40-42.) Conversely, a “detracking” policy “commingl[es] students with mixed academic achievement in the same classes, with the intention of exposing all students to the same curriculum, materials, and teaching.” (Id. ¶ 45.) Plaintiff describes tracking as a matter of public concern debated by educators and policymakers for decades. (Id. ¶¶ 43, 50.)

Plaintiff alleges that in April 2021, he learned that school officials were “quietly implement[ing]” a detracking policy in the School District's curriculum despite the Board never officially adopting such a policy. (Id. ¶¶ 51-55.) Defendants Lisa Antunes (then-Superintendent of the District) and Kim Feltre (then-Assistant Superintendent for Curriculum and Instruction) instituted the detracking policy and required staff members “to refer to detracking as a ‘practice,' not as a policy . . . so that detracking could be implemented under the radar without requiring disclosure to, or approval from, the elected [Board members] or the public.” (Id. ¶¶ 53-54.)

On April 28, 2021, after Plaintiff learned of Antunes's and Feltre's efforts, he began sending “numerous” emails to members of the Board and HEA, including Defendants Jean Trujillo (then-president of the Board), Gregory Gillette (then-Board Township Liaison), Henry Goodhue (then-president of the HEA), and Amy Salinger (then a teacher and the HEA treasurer). (Id. ¶¶ 11-15, 29-30, 56, 74-75.) Plaintiff intended to inform these officials of the “unauthorized, clandestine implementation of detracking in [Hillsborough Township] schools and further persuade them that detracking was not in the best interest of . . . students, the school district, and the town at large.” (Id. ¶ 56.)

Plaintiff sent his emails using a pseudonym “to protect the sources” who provided him with information about the “unofficial detracking policy.” (Id. ¶ 60.) Plaintiff also feared that “administrators would retaliate against his wholly-uninvolved spouse,” a school district employee. (Id.) Plaintiff alleges that his emails were “professional” and “respectful,” and often included “academic papers that presented a balanced examination of detracking.” (Id. ¶¶ 65-67.) Many of Plaintiff's emails “were versions of previous email communications that he forwarded to the recipients.” (Id. ¶ 76.) Plaintiff never received any responses to his emails. (Id. ¶ 77.)

On June 16, 2021, Plaintiff began sending emails to the Board's “general email address.” (Id. ¶ 81.) On June 18, 2021, Defendant Aiman Mahmoud, then-secretary of the Board and the school district's business administrator, responded to Plaintiff's email. (Id. ¶¶ 24, 83.) Mahmoud accused Plaintiff “of engaging in criminal harassment,” “threatened to uncover [Plaintiff's] real identity,” “demanded that he cease and desist from sending further email communications,” and “advised [Plaintiff] that the [school district] . . . would file a criminal complaint against him.” (Id. ¶¶ 83-86.) Mahmoud also copied to the email the Captain of the HTPD, Defendant Dave Fisher. (Id. ¶¶ 33, 87.) Plaintiff alleges that Mahmoud sent his email at the direction of the HEA and Board Defendants. (Id. ¶¶ 87-89.) Plaintiff responded via email that same day, explaining to Mahmoud that his emails “did not constitute criminal harassment” but promising “to cease his email communications anyway.” (Id. ¶ 93.) Mahmoud responded that the school administration still intended to pursue criminal charges. (Id. ¶¶ 95-96.) After this exchange, “Plaintiff began suffering from severe anxiety,” including “difficulty sleeping, panic attacks, lack of concentration, headaches, nausea, and feelings of dread.” (Id. ¶ 98.) On June 24, 2021, Plaintiff sent another pseudonymous email to Mahmoud describing his anxiety and asking Defendants “to cease their efforts to unmask [Plaintiff] and prosecute him.” (Id. ¶ 99.) Mahmoud did not respond but forwarded Plaintiff's email to Fisher. (Id. ¶¶ 100-101.)

On June 21, 2021, Fisher opened an investigation into Plaintiff “at the direction, encouragement, and/or insistence of” the HEA and Board Defendants. (Id. ¶¶ 102-103.) On July 12, 2021, a lawyer for Plaintiff sent a letter to Mahmoud and Fisher explaining that Plaintiff's emails were protected by the First Amendment, and that Mahmoud's “threats to prosecute Plaintiff [were] inappropriate and clearly meant to interfere with and undermine Plaintiff's right of free speech.” (Id. ¶¶ 108-111.) But the investigation proceeded. Defendant Thomas McLain, a member of the HTPD, interviewed Callahan, Trujillo, Goodhue, Salinger, and Gillette in June and July 2021 and discovered Plaintiff's identity after issuing subpoenas related to Plaintiff's anonymous email account. (Id. ¶¶ 104-106, 115-126.) McLain also conducted a “telephone interrogation” with Plaintiff and his counsel. (Id. ¶¶ 127-139.) On September 27, 2021, Plaintiff was charged with criminal harassment. (Id. ¶ 147.) On April 12, 2022, without hearing from any witnesses, the municipal court “determined that the State could not meet its burden of proof supporting the elements of harassment . . . and entered a verdict of ‘not guilty.'” (Id. ¶ 152.)

B. Procedural History

Plaintiff asserts six causes of action. Counts One and Three are claims of First Amendment retaliation under 42 U.S.C. § 1983 against the individual Defendants in their individual capacities. (Id. ¶¶ 154-158, 163-167.) Counts Two and Four are claims of First Amendment retaliation under § 1983 against the Board and HTPD for a “policy, practice, and/or custom” that violated Plaintiff's First Amendment rights. (Id. ¶¶ 159-162, 168-171.) Counts Five and Six are claims for violations of Plaintiff's rights to free expression and petition under the New Jersey Civil Rights Act (NJCRA), N.J. Stat. Ann. § 10:6-1, et seq. (Id. ¶¶ 172-177.)

In December 2023 and January 2024, the HEA, Board, and Police Defendants filed their Motions to Dismiss. (ECF Nos. 5, 10, 11.) On January 23, Plaintiff filed a Motion to Proceed Pseudonymously. (ECF No. 14.) On February 6, Plaintiff filed a single brief in opposition to Defendants' Motions to Dismiss. (ECF No. 19.^[4]) The HEA and Board Defendants replied. (ECF Nos. 20 & 21.) On August 30, the Magistrate Judge denied Plaintiff's Motion to Proceed Pseudonymously. (ECF No. 26.)

II. STANDARD OF REVIEW

A. Rule 12(b)(1)-Lack of Subject Matter Jurisdiction

Under Rule 12(b)(1), a party may bring a motion to dismiss for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). There are two types of subject-matter challenges under Rule 12(b)(1): “either a facial or a factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).

The distinction is significant because it determines, among other things, whether the court accepts as true the non-moving party's facts as alleged in the pleadings. See id. (“In contrast to a facial challenge, a factual challenge allows ‘a court [to] weigh and consider evidence outside the pleadings.'” (quoting Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014))); see also Aichele, 757 F.3d at 358 (explaining differences between a facial and factual attack under Rule 12(b)(1)). On a facial attack, the court “accept[s] the complaint's well pled allegations as true, and review[s] ‘the allegations of the complaint and documents referenced therein and attached thereto[] in the light most favorable to the plaintiff.” Manivannan v. United States Dep't of Energy, 42 F.4th 163, 169 (3d Cir. 2022) (quoting Gould Elecs. Inc. v. United States, 220 F.3d 169 176 (3d Cir. 2000)). On a...