KOUTZIS v. MELLEBY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

P.K., by and through his

legal guardians ELEFTHERIA

KOUTZIS and KYRIACOS KOUTZIS,

Plaintiffs,

v. Civil No. 18-485 (NLH/DEA)

HAROLD MELLEBY, JR., OPINION

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.

APPEARANCES:

LILIA LONDAR

DANIEL EDWARD RYBECK

GEORGIOS FARMAKIS

WEIR & PARTNERS LLP

215 FRIES MILL ROAD

2ND FLOOR

TURNERSVILLE, NJ 08012

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

15000 MIDLANTIC DRIVE

SUITE 200

P.O. BOX 5429

MOUNT LAUREL, NJ 08054

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.

HILLMAN, District Judge

This 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.

BACKGROUND

We take 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.

On 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.)

On 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.

Mrs. 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 appropriately.”

(Pl.’s Compl. ¶ 30.a.-c.)

P.K., 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.)

The 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.

On 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.

Defendant 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.)

On 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.

On 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.

On 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).

That 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.)

On 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

adjudication.

DISCUSSION

A. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this action

pursuant to 28 U.S.C. §§ 1331 and 1367.

B. Standard for Motion to Dismiss

When 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.” FED. R. CIV. P. 8(a)(2).

“While 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)).

A 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).

C. Motion to Dismiss

Defendants’ 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 Plaintiff failed to file a timely notice of claim.

Plaintiff opposes these arguments. The Court will address each

of these overall arguments in turn.

a. The IDEA and Section 504 Claims

Defendants argue that both the IDEA and Section 504 claims

should be dismissed for failure to exhaust administrative

remedies. Defendants argue that Plaintiff inappropriately

bypassed an administrative hearing, instead filing his Complaint

directly in federal court. In opposition, Plaintiff asserts it

was proper to file his Complaint in federal court, as he was not

afforded due process and thus was excused from exhaustion of

administrative remedies.

It appears the parties agree: Plaintiff has not exhausted

administrative remedies as normally required for his IDEA and

IDEA-related Section 504 claims. The law is also clear: “the

policy of requiring exhaustion of remedies in the Disabilities

Education Act is a strong one.” Komninos v. Upper Saddle River

Bd. of Educ., 13 F.3d 775, 778 (3d Cir. 1994). In fact, in the

Third Circuit, “exhausting the IDEA’s administrative process is

required in order for the statute to ‘grant[] subject matter

jurisdiction to the district court[].’” Batchelor v. Rose Tree

Media Sch. Dist., 759 F.3d 266, 272 (3d Cir. 2014) (quoting

Komninos, 13 F.3d at 778 (alterations in original)). Even so,

“some exceptions have been recognized,” which allow a court to

excuse a lack of exhaustion. Id. Those exceptions, however,

are narrow and limited only to the following circumstances:

•

If exhaustion would be futile or inadequate;

•

If the question for review is purely legal;

•

If the underlying administrative agency “cannot grant

relief”; or

•

If “exhaustion would work ‘severe or irreparable harm’ upon

a litigant.”

Beth V. by Yvonne V. v. Caroll, 87 F.3d 80, 89 (3d Cir. 1996)

(quoting Komninos, 13 F.3d at 778). It is only the first of

these scenarios which Plaintiff asserts applies in this matter.

Before addressing the question of exhaustion, it is

important to describe the basis of the claims, as different

violations require different methods of exhaustion under New

Jersey law, which is controlling on the question of exhaustion.

Two claims are made under IDEA and Section 504. First,

Plaintiff complains that Defendants both failed in identifying,

evaluating, and creating an IEP for Plaintiff. Second,

Plaintiff claims Defendants failed to appropriately discipline

him.

The Court has previously determined, upon prompting by

Defendants’ former counsel at the January 26, 2018 hearing, that

Plaintiff’s claims based in discipline were expressly excused

from the administrative exhaustion requirement. The Court found

that it was excused under the futility exception because

Defendants had failed to follow – in multiple respects – New

Jersey law for the discipline imposed. Accordingly, the Court

will not dismiss these claims for failure to exhaust

administrative remedies.1

The complaints as to whether Defendants’ satisfied their

IEP obligations for Plaintiff are, however, factually

independent and have different exhaustion requirements. For

those claims, a “party may elect to have the complaint

investigated by the state educational agency, see 34 C.F.R. §

300.661, or avail itself of an ‘impartial due process hearing,’

20 U.S.C. § 1415(f).” M.G. v. Crisfield, 547 F. Supp. 2d 399,

412 (D.N.J. 2008) (quoting A.W. v. Jersey City Public Schs., 486

F.3d 791, 802 (3d Cir. 2007)). As stated supra, it is

undisputed that Plaintiff did not avail himself of either avenue

of exhaustion.

It is also clear that Plaintiff cannot assert that

exhaustion would be futile as to this claim. There can be no

1 Defendants’ request could be considered one for

reconsideration. However, Defendant’s request would be nearly a

year late. As such, the Court need not and will not reconsider

its previous ruling on this issue.

allegations of due process violations nor failures on Defendants

part concerning due process because Plaintiff did not file a

complaint initiating an investigation or due process hearing.

See N.J. ADMIN. CODE § 6A:14-2.7 (describing the process for

requesting a due process hearing); N.J. ADMIN. CODE § 6A:14-9.2

(describing the process for a complaint investigation). Thus,

the Court must dismiss those IDEA and Section 504 claims for

lack of subject matter jurisdiction. See Batchelor, 759 F.3d at

272 (“In the normal case, exhausting the IDEA’s administrative

process is required in order for the statute to ‘grant[] subject

matter jurisdiction to the district court[].’” (Komninos, 13

F.3d at 778 (alterations in original)).2

Defendants also argue that the remaining IDEA and Section

504 claims are moot because Plaintiff’s requested relief has

been given. Plaintiff argues those claims are not moot because

it is requesting attorneys’ fees in conjunction with those

2 The Court notes it has also considered the fact that Defendants

agreed during the January 23, 2018 hearing before this Court,

through prior counsel, to satisfy its IEP obligations with

Plaintiff. Obviously, this concession is in tension with the

fact that Defendants assert the IEP claims should be dismissed

for lack of exhaustion. In other words, it would appear

Defendants’ agreement to complete an IEP for Plaintiff would

constitute a waiver of its exhaustion argument. Although

Plaintiff did not argue this point, the Court holds that this

agreement does not constitute waiver, because the exhaustion

requirement is jurisdictional in nature and cannot be waived.

In re Morrissey, 717 F.2d 100, 102 (3d Cir. 1983) (noting that

lack of jurisdiction is non-waivable).

claims. Ignoring, for the moment, the issue of attorneys’ fees,

the Court notes that Defendants’ agreement to give Plaintiff

this relief does not moot a claim, just as an admission of

liability would not moot a claim. Instead of filing a motion to

dismiss, Defendants should file, if Plaintiff consents, a joint

stipulation of dismissal. Moreover, because the Court will

grant Plaintiff’s request to add attorneys’ fees, not all relief

requested has been granted. Therefore, the claim is still live.

Accordingly, the Court will deny Defendants’ Motion to Dismiss

as it relates to the IDEA and Section 504 claims on disciplinary

issues and grant it as it relates to the IDEA and Section 504

claims on the IEP issue.

b. The False Arrest Claims3

Plaintiff asserts claims under § 1983, § 1985, and the ADA

for Plaintiff’s allegedly false arrest.4 Defendants argue all

claims stemming from the allegedly false report or complaint

should be dismissed because either (1) the Heck doctrine bars

those claims or (2) the reporting of a crime to the police is

not state action. Plaintiffs’ opposition is solely focused on

the application of the Heck doctrine. Plaintiffs assert the

3 Based on the Court’s ruling here, the Court finds that

Defendants’ qualified immunity argument is moot.

4 The Court notes that Plaintiff also asserts a false arrest

common law claim. The Court will address this claim infra.

Heck doctrine does not apply because the false arrest claims

concern statements made to the police on December 8, 2017, not

the criminal complaint filed by Defendant Melleby on December

22, 2017. It was only, according to Plaintiff’s, the criminal

complaint that could have led to the alleged plea deal and

consequent application of the Heck doctrine.

Before addressing these claims, the Court must first

address the argument concerning the Heck doctrine. The factual

predicate for this argument is that Plaintiff pled guilty on

June 22, 2018 to the crime he was charged with on December 22,

2017. Obviously, based on the time the complaint here was

filed, this assertion is not contained in Plaintiff’s Complaint.

While it is true that in ruling on a motion to dismiss, a court

has “‘discretion to address evidence outside the complaint . . .

.,’” a court “‘may [only] consider an undisputedly authentic

document that a defendant attaches as an exhibit to a motion to

dismiss if the plaintiff’s claims are based on the document.’”

CitiSteel USA, Inc. v. Gen. Elec. Co., 78 F. App’x. 832, 835 (3d

Cir. 2003) (quoting Pryor v. Nat’l Collegiate Athletic Ass’n,

288 F.3d 548, 559 (3d Cir. 2002); PBGC v. White Consol. Indus.,

998 F.2d 1192, 1196 (3d Cir. 1993)). The factual predicate that

Defendants rely upon for this argument is not contained in an

undisputedly authentic document, but is instead contained in

argument in their brief. As such, the Court cannot consider

Defendants’ assertion and, by extension, their argument.

Accordingly, the Court will not consider the application of the

Heck doctrine to any of the false arrest claims.

i. The § 1983 Claims

Plaintiff brings three claims: a § 1983 claim, § 1983

conspiracy claim, and § 1983 municipal liability claim, a Monell

claim. Defendants argue there has been no state action, so any

claims under § 1983 must be dismissed. A claim under 42 U.S.C.

§ 1983 does in fact require state action. See Boyce v. Eggers,

513 F. Supp. 2d 139, 144 (D.N.J. 2007) (“Under 42 U.S.C. § 1983,

a defendant must have caused a constitutional violation ‘under

color of law’ to be civilly liable for that violation. Because

the Constitution’s state action requirement is identical to the

‘under color of law’ requirement in 42 U.S.C. § 1983, . . . the

analysis of whether [the defendant] was acting under color of

law will inform both whether she is suable under § 1983 and

whether any violation of the Constitution occurred.” (citation

omitted)).

Without more, a state or municipal employee reporting

suspected criminal conduct to the police is not state action.

See id. (“There is not [sic] merit to [the p]laintiff’s argument

that [the defendant] was acting under color of law when she

filed her complaint merely because she was employed by [a

b]orough at the time.”). As the court in Boyce explained:

It is clear that she was complaining to the police and

filing a complaint in the same manner as would any

private citizen. There is no allegation that she was

under the direction of her employer or used her position

in any way to effectuate the filing. There is no

allegation, nor any evidence, that her usual job duties

involved any of the tasks she performed to file the

criminal complaint. Nor is there evidence indicating

that any power associated with her position enabled [the

defendant] to file the complaint. As such, no reasonable

jury could find that she was acting under color of law.

Id.

Here, the allegations are similarly deficient. There are

no allegations indicating Defendants Melleby and Tull were (1)

under the direction of Eastern, the District, or the Board, (2)

used their position to effectuate the filing, (3) usually

reported criminal conduct of this nature, or (4) their positions

enabled them in some special way to report Plaintiff’s behavior.

Thus, regardless of whether the report was false, it is clear no

state action was involved.

Plaintiff also alleges conspiracy under § 1983. The § 1983

conspiracy is deficient because Plaintiff is not relieved of his

duty to allege state action when alleging a conspiracy under §

1983. See Miles v. Twp. of Barnegat, 343 F. App’x 841, 845 (3d

Cir. 2009) (discussing cases requiring state action by a member

of the conspiracy in order for liability to attach under §

1983). Therefore, the § 1983 conspiracy case must also be

dismissed.

Finally, Plaintiff alleges a Monell claim. Under this

claim, Plaintiff asserts “Defendants Melleby and Tull have final

policy making authority on behalf of the High School and Board”

and that Eastern and the “Board officially sanctioned,

authorized, ratified, acquiesced in, or condoned the decision of

the individual Defendants to unlawfully arrest Plaintiff.”

(Pl.’s Compl. ¶¶ 111-12.) In other words, the policy or custom

to be considered for this Monell claim is the decision of

Melleby and Tull to make a false statement to the police.

As with the other § 1983 claims, the Monell claim is

similarly deficient. A Monell claim arises under § 1983.

Lapella v. City of Atl. City, No. 10-2454 (JBS/JS), 2012 U.S.

Dist. LEXIS 100327, at *10 (D.N.J. July 18, 2012) (citing Monell

v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690

(1978)). Thus, again, it is subject to the state action

requirement. See Fortnua’s Cab Serv. v. City of Camden, 269 F.

Supp. 2d 562, 565 (D.N.J. 2003) (“Without evidence of

established government conduct depriving Plaintiffs of their

rights, there is no requisite state action necessary for a due

process violation.”).

Even though it is clear Plaintiff has not alleged state

action, it is not clear whether factual predicates exist which

would allow Plaintiff to allege state action. Particularly, it

is unclear to this Court whether Plaintiff could allege that

Defendants Melleby and Tull’s “usual job duties” involved

reporting criminal activity within a school by one of its

students to the police. Although the Court will dismiss

Plaintiff’s § 1983 claims, it will do so without prejudice.

Plaintiff may move for leave to amend his complaint in this

manner at an appropriate time.

ii. The § 1985 Claim

Defendants argue that the § 1985 conspiracy claim should be

dismissed because Plaintiff’s allegations are merely conclusory.

Plaintiff argues that his allegations sufficiently comply with §

1985 and the federal pleading requirements. While the

allegations contain some of the necessary detail, they are

ultimately deficient.

The elements of a § 1985(3) claim are as follows:

“(1) a conspiracy; (2) for the purpose of depriving,

either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal

privileges and immunities under the laws; and (3) an act

in furtherance of the conspiracy; (4) whereby a person

is injured in his person or property or deprived of any

right or privilege of a citizen of the United States.”

Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006)

(quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S.

825, 828-29 (1983)).5 In stating a § 1985(3) claim “a plaintiff

5 The Court notes here that § 1985(3), unlike § 1983 does not

require state action. See Farber, 440 F.3d at 134-35 (citing

Griffin v. Breckenridge, 403 U.S. 88, 101 (1971)) (“In Griffin,

however, the Court reversed course and held that a § 1985(3)

claim can reach private as well as public conspiracies that seek

to deprive a class of equal protection of the laws or equal

must allege both that the conspiracy was motivated by

discriminatory animus against an identifiable class and that the

discrimination against the identifiable class was invidious.”

Id. at 135 (citing Aulson v. Blanchard, 83 F.3d 1, 4-5 (1st Cir.

1996)). Only certain classes allow a plaintiff to meet the

“invidious” requirement, including “race, sex, or mental

retardation.” Id. at 135.

It is clear that elements three and four are met here, as

the allegedly false report may qualify as an act in furtherance

of a conspiracy and the allegation of a false arrest clearly

alleges a deprivation of a constitutional right. Elements one

and two present a closer question. A part of element two is

clearly satisfied by the allegation of class-based

discrimination against an individual with a disability, here a

minor with autism.

But, whether there was a conspiracy and that conspiracy’s

purpose is not sufficiently stated in Plaintiff’s Complaint.

Plaintiff’s only allegation concerning the content of the

conspiracy was that “[t]he actions of Melleby and Tull

constituted a conspiracy to violate the civil rights of

Plaintiff.” (Pl.’s Compl. ¶ 91.) As a court in this District

has previously stated:

“It is not enough, however, for a plaintiff to make

privileges under the laws.”).

merely broad or conclusory allegations concerning the

existence of . . . a conspiracy . . . . Rather,

plaintiffs must allege with sufficient particularity

that the [defendants] reached some understanding or

agreement, or plotted, planned and conspired together,

to deprive plaintiffs of a federal right.”

Hauptmann v. Wilentz, 570 F. Supp. 351, 375 (D.N.J. 1983)

(quoting Chicarelli v. Plymouth Garden Apartments, 551 F. Supp.

532, 539 (E.D. Pa. 1982)). There is no allegation, conclusory

or otherwise, that Defendants (1) came to an agreement or (2)

what constituted the agreement.6 Accordingly, the Court will

dismiss the § 1985(3) claim, without prejudice. Plaintiff may

move for leave to amend his complaint to remedy this deficiency

at an appropriate time.

iii. The ADA Claim

Defendants argue a lack of state action also compels the

Court to dismiss Plaintiff’s ADA claim. More specifically,

Defendants argument is that the case law supporting dismissal of

the § 1983 claims supports dismissal of this ADA claim.

Plaintiff does not directly rebut this argument, but instead

focuses on how his Complaint has adequately pled the elements of

an ADA claim. Plaintiff indirectly counters Defendants’

6 The Court notes Plaintiff states in his opposition brief that

“Defendants agreed to remove Plaintiff from school by means of

making a false report to the police.” (Pl.’s Opp’n Br. 7.)

Plaintiff does not provide citation to where this assertion

resides in his Complaint, and upon review, the Court does not

find this allegation to be part of Plaintiff’s Complaint.

argument by asserting Defendants were involved in Plaintiff’s

false arrest.

First, the Court will address Defendants analogy to §

1983’s “state action” requirement. The ADA does not contain a

“state action” requirement analogous to § 1983. While it does

require that a “public entity” – a statutorily defined term

which Defendants do not dispute is applicable to them – engage

in the discrimination, Defendants have cited no case which would

limit which actions fall within the purview of the ADA. In

fact, whereas § 1983 has various judicially-created doctrines

restricting its application, “the ADA is deliberately broad.”

Haberle v. Troxell, 885 F.3d 171, 179 (3d Cir. 2018). In fact,

the Third Circuit stated “[t]he ‘subjected to discrimination’

phrase in Title II is ‘a catch-all phrase that prohibits all

discrimination by a public entity, regardless of the context.’”

Id. at 180. The Court will not dismiss the ADA claim here on

these grounds.

Second, the Court will address what appears to be a

corollary of Defendants argument: because Defendants were not

involved in the arrest of Plaintiff, they cannot be liable under

the ADA. It does not appear that Plaintiff alleges Defendants

actually brought Plaintiff to the ground, cuffed, search, and

detained him. Plaintiff alleges Defendants made a false

statement to the VPD which prompted these actions. While an

argument could be made that a true statement – whatever the

contents of that statement may be – would have led to the same

action by police, Defendants’ argument here on causation is

deficient. The Court must make all reasonable inferences in

favor of Plaintiff.7 Doing so here requires the Court to find

that Defendants were part of the causal chain, because that is

what has been plausibly alleged. Accordingly, the Court will

not dismiss Plaintiff’s ADA claim against Defendants.

c. The State Law Tort Claims

Defendants argue Plaintiff’s state law tort claims (common

law false arrest, IIED, and NIED claims) must be dismissed as a

matter of law because they are barred by the New Jersey Tort

Claims Act (“NJTCA”). Defendants argue there are two reasons

these causes of actions are barred by the NJTCA: (1) Plaintiff

has not filed a notice of claim or requested permission to file

a late notice of claim and (2) Plaintiff’s injury does not meet

the so-called “verbal threshold.” Plaintiff does not offer any

argument in opposition. Nonetheless, the Court will consider

the merits of Defendants two arguments.

Under New Jersey law, “[n]o action shall be brought against

a public entity or public employee . . . unless the claim upon

7 As with the argument concerning the Heck doctrine, the argument

Defendants make concerning a breach in the chain of causation

because Plaintiff pled guilty cannot be considered as it is not

properly before the Court.

which it is based shall have been presented in accordance with

the procedure set forth” within the NJTCA.8 N.J. STAT. ANN. §

59:8-3. The procedure requires, in relevant part, the

following:

A claim relating to a cause of action for death or for

injury or damage to person or to property shall be

presented as provided in this chapter not later than the

ninetieth day after accrual of the cause of action.

After the expiration of six months from the date notice

of claim is received, the claimant may file suit in an

appropriate court of law. The claimant shall be forever

barred from recovering against a public entity or public

employee if:

a. He failed to file his claim with the public

entity within 90 days of accrual of his claim except as

otherwise provided in section 59:8-9[.]

N.J. STAT. ANN. § 59:8-8. As is made clear by the NJTCA, failure

to file a notice of claim within ninety days of accrual of a

claim bars a plaintiff from bringing a tort claim against public

entities or employees in court. Here, Defendants are correct:

Plaintiff has provided no indication in his Complaint that he

filed a notice of claim, much less within the statutorily

prescribed period of ninety days.

Defendants are also correct that Plaintiff does not qualify

for the narrow exception to the bar previously discussed. This

Court, in its discretion, may allow a claimant to file a late

8 Because Defendants are either county entities or county

employees, it appears they would properly be considered public

entities or employees.

notice within one year after the accrual of the cause of action.

N.J. STAT. ANN. § 59:8-9. But, this may only be done when (1) the

public entity or employee has not been substantially prejudiced

and (2) the claimant has submitted affidavits that prove

extraordinary circumstances relating to claimant’s failure to

file.2 N.J. STAT. ANN. § 59:8-8. If the one-year limit has

passed, a court is without discretion to allow late notice.

Davis v. Twp. of Paulsboro, 371 F. Supp. 2d 611, 618 (D.N.J.

2005). Even assuming Plaintiff meets the above two elements and

less than a year has elapsed, Plaintiff has made no application

to the Court. Therefore, the Court may not grant Plaintiff

permission to file a late notice of claim.

Furthermore, in order to properly state an NIED or IIED

claim, a “verbal threshold” must be met under the NJTCA, which

provides:

No damages shall be awarded against a public entity or

public employee for pain and suffering resulting from

any injury; provided, however, that this limitation on

the recovery of damages for pain and suffering shall not

apply in cases of permanent loss of a bodily function,

permanent disfigurement or dismemberment where the

medical treatment expenses are in excess of $3,600.00.

R.K. v. Y.A.L.E. Sch. Inc., No. 07-5918, 2009 WL 1066125, at *3

(D.N.J. Apr. 20, 2009) (citing N.J. STAT. ANN. § 59:9–2(d)).

2 This Court has the discretion to permit late filings of torts

within one year after accrual. See Webster v. Rutgers- N. J.

Med. Sch., No. 15-08689, 2017 WL 3399996, at *3 (D.N.J. Aug. 4,

2017).

Humiliation, anguish, mental pain, depression, and

emotional distress, are only considered “pain and suffering,”

which categorically do not meet the verbal threshold. See

Gretzula v. Camden Cty. Tech. Sch. Bd. Of Educ., 965 F. Supp. 2d

478, 490 (D.N.J. 2013) (stating a school board employee’s IIED

claim of mental anguish and emotional distress was barred); PBA

Local No. 38 v. Woodbridge Police Dept., 832 F. Supp. 808, 821

(D.N.J. 1993) (finding injuries consisting of humiliation,

mental pain and anguish “fall within the purview of pain and

suffering”); Mercado v. State, 515 A.2d 804, 808 (N.J. Super.

Ct. Law. Div. 1985) (“[E]motional stress, distress, anxiety, and

embarrassment . . . provide no basis for recovery . . . under

the Tort Claims Act.”).

The Court finds Plaintiff’s Complaint fails to provide any

allegations concerning permanent injury that would meet the

verbal threshold. Moreover, there are no allegations concerning

any medical treatment, if any, Plaintiff required as a result of

the incidents involved in this case. Therefore, the tort claims

found at Counts V, VI, and VII will be dismissed.

D. Motion to Amend Standard

Pursuant to Federal Rule of Civil Procedure 15(a)(2), “a

party may amend its pleading only with the opposing party's

written consent or the court’s leave.” Rule 15(a)(2) further

“requires that leave to amend the pleadings be granted freely

‘when justice so requires.’” Long v. Wilson, 393 F.3d 390, 400

(3d Cir. 2004) (citing FED. R. CIV. P. 15(a)) (“We have held that

motions to amend pleadings should be liberally granted.”).

Thus, “absent undue or substantial prejudice, an amendment

should be allowed under Rule 15(a) unless denial [can] be

grounded in bad faith or dilatory motive, truly undue or

unexplained delay, repeated failure to cure deficiency by

amendments previously allowed or futility of amendment.” Long

v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (internal

quotations, citations, and emphasis omitted); see also Haynes v.

Moore, 405 F. App’x 562, 564 (3d Cir. 2011) (noting that even

though leave to amend under Rule 15 should be freely given, “a

district court may exercise its discretion and deny leave to

amend on the basis of undue delay, bad faith, dilatory motive,

prejudice, or futility.”). It is under this standard that the

Court considers Plaintiff’s Amended Motion to Amend.

E. Plaintiff’s Amended Motion to Amend

Plaintiff has also cross-moved for leave to amend its

Complaint. Before considering the merits of the motion, the

Court must briefly discuss the relevant procedural history. On

November 30, 2018, Defendants filed their Motion to Dismiss,

which was discussed supra. On January 15, 2019, Plaintiff filed

his opposition brief and then separately filed the Motion to

Amend. The Motion to Amend requested leave to amend to include

“relief for attorney fees [sic] sought in damages as to Counts

I-IV and Counts IX-XI.” (Pl.’s Mot. to Am. 1.) On January 28,

2019, Defendants filed a consolidated reply brief and opposition

to Plaintiff’s Motion to Amend.

On February 12, 2019, Plaintiff’s counsel, Mr. Georgios

Farmakis, filed a letter on the docket stating that the Motion

to Amend included a proposed amended complaint that was an

“attorney-work product draft, and not the actual proposed

Amended Complaint.” (Pl.’s Feb. 12, 2019 Letter 1.) In

response, this Court entered a Text Order directing Plaintiff to

file an amended cross-motion to amend and allowing Plaintiff to

pursue whatever relief necessary to remedy the inadvertent

disclosure of attorney work product. On March 25, 2019,

Plaintiff filed his Amended Motion to Amend and on April 22,

2019, Defendants filed their opposition. In his April 29, 2019

reply brief, Plaintiff requests the Court disregard the Motion

to Amend and only consider the Amended Motion to Amend. Based

on this procedural history and Plaintiff’s concession, the Court

will deny, without prejudice, Plaintiff’s Motion to Amend and

will only consider Plaintiff’s Amended Motion to Amend.9

9 The Court notes that Defendants object to Plaintiff’s first

Cross-Motion to Amend under Local Rule of Civil Procedure 7.1(h)

because Plaintiff filed two briefs instead of a combined brief.

Although technically not in the form demanded by Rule 7.1(h),

the briefs do not exceed the page limit and were filed on the

same day so as to meet the substantive requirements of the rule.

Plaintiff’s Amended Motion to Amend requests – on its face

– the same relief as requested previously: leave to file an

Amended Complaint which includes a request for attorneys’ fees

as to Counts I-IV and IX-X. Defendants’ opposition shows,

however, that other relief has been added to the proposed

Amended Complaint that is not explicated in the Amended Motion

to Amend. Defendants cite the following undisclosed additions

to Plaintiff’s proposed Amended Complaint:

•

A request for “[i]njunctive relief for an order requiring

Plaintiff to immediately return to the High School” under

Count I (Pl.’s Proposed Am. Compl. ¶ 84.b.);

•

A request for “actual damages” and a removal of the request

for “[i]njunctive relief for an order requiring Defendants

to design an IEP for Plaintiff” under Count X (Pl.’s

Proposed Am. Compl. ¶ 129.b.; Pl.’s Compl. ¶ 129.b.).

Defendants argue the addition of these undisclosed amendments

“suggest inappropriate motives.” (Defs.’ Reply Br. 2.)

Plaintiff argues Defendants case law is inapplicable and there

is no inappropriate motive.

Plaintiff is reminded to follow the Federal and Local Rules of

Civil Procedure in all filings before the Court. The Court also

notes for the record that Defendants objection to Plaintiff’s

addition of an New Jersey Law Against Discrimination (“NJLAD”)

claim in the Motion to Amend is now moot. Since the Amended

Motion to Amend does not contain an NJLAD claim, this argument

need not be addressed by the Court.

Based on this Court’s decision on Defendants’ Motion to

Dismiss, any proposed amendments to Counts I, II, or III will be

denied, without prejudice as those claims have been dismissed,

without prejudice. Therefore, Defendants’ argument as to the

undisclosed addition to Count I is moot. The addition of

attorneys’ fees as to Counts IV, IX, and X will be granted, as

the Rule 15 standard advises that amendments shall be freely

given and these additions were specifically requested.

Remaining is Plaintiff’s addition of a request for actual

damages and removal of a request for injunctive relief under

Count X. That relief will not be granted because Plaintiff has

not requested it. Plaintiff’s Amended Motion to Amend does not

request an addition or deletion in this respect, but rather is

confined to the issue of attorneys’ fees. It is axiomatic that

the Court cannot grant relief which is not requested.

Plaintiff, if he so desires, may move at an appropriate date to

amend his Amended Complaint in this respect if he wishes to do

so.

Accordingly, Plaintiff will be directed to file an Amended

Complaint within a specified period of time as directed by this

Court’s Order. The Amended Complaint should excise any claims

which have been dismissed by this Court and should only add the

attorneys’ fees requests that were expressly granted by this

Court.

CONCLUSION

For the reasons set forth in this Opinion, Defendants’

Motion to Dismiss will be granted, in part, and denied, in part.

Plaintiff’s Motion to Amend will be denied, without prejudice.

Plaintiff’s Amended Motion to Amend will be granted, in part,

and denied, in part, without prejudice.

An appropriate Order will be entered.

Date: August 28, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.