SANCHEZ v. ELIZABETH BOARD OF EDUCATION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

E.S.,a minor, by and through his Guardian ad Civil Action No.: 2:20-cv-01027 (CCC-MF)

Litem, ELIZABETH SANCHEZ,ELIZABETH

SANCHEZ, individually, and CHARLES

SANCHEZ, individually, OPINION

Plaintiffs,

v.

ELIZABETH BOARD OF EDUCATION,

NICHOLAS S. LA CORTE SCHOOL,

JOSEPH TROIANO, JENNIFER CAMPEL,

and CRISTINA BRITO,

Defendants.

CECCHI, District Judge.

This matter comes before the Court on the motion of Defendants Elizabeth Board of

Education (the “Elizabeth BOE”), Joseph Troiano, Jennifer Campel, and Cristina Brito

(collectively, the “Elizabeth BOE Defendants”) (ECF No. 7 (“Mot. to Dismiss”)) to partially

dismiss the Complaint (ECF No. 3 (“Compl.”) of Plaintiffs E.S.1, Elizabeth Sanchez,and Charles

Sanchez(collectively “Plaintiffs”). The Court decides this matter without oral argument pursuant

to Federal Rule of Civil Procedure 78(b). After reviewing the submissions made in support of and

in opposition to the instant motion (ECF Nos. 9 (“Opp’n”), 12 (“Reply”)), and for the reasons set

forth below, the Elizabeth BOE Defendants’motion is GRANTEDin part and DENIEDin part.

I. BACKGROUND

In June 2017, Plaintiff E.S. was a 12-year-old student at the Nicholas S. La Corte School

(the “La Corte School”), apublic elementary schoolin Elizabeth, New Jersey. Compl. at ¶ 15. The

instant Action arises out of an incident that occurred at the La Corte School’s gymnasium on or

1Plaintiff E.S. files the instant Complaint by and through his guardian ad litemElizabeth Sanchez.

about June 2 or June 21, 2017, when E.S.’s music teacher, Defendant Joseph Troiano, was

preparing E.S. and his classmates for an eighth-grade graduation.2 Compl. at ¶ 15; Opp’n at 3.

Plaintiffs allege that E.S.’s classmates “became rowdy and disruptive[, and that] E.S. began

laughing after he was tickled by two female classmates.” Compl. at ¶ 17. Plaintiffs further allege

that, in response, Troiano “lost his cool,” forcefully grabbed E.S. by his arm, punched E.S. in the

chest with two fists, and “proceeded to block and intimidate Plaintiff E.S. with his physical

presence.” Id. at ¶ 18. E.S. then reported the incident to Defendant Vice-Principal Jennifer

Campel, touching off reports to E.S.’s parents (Plaintiffs Elizabeth and Charles Sanchez), the

police, and the Department of Child Protection and Permanency (the “DCPP”). Id. at ¶ 20.

Plaintiffs further allege that a video of the incident exists and that: (1) the Elizabeth BOE

Defendants initially denied Elizabeth and Charles Sanchez access to the video; (2) Defendant

Campel “falsely denied the existence of the video”; and (3) Defendant Cristina Brito, the principal

of the La Corte School,intentionally failed to disclose the video when reporting the incident to the

DCPP. Id. at ¶¶ 22–23.

Plaintiffs allege that, after the assault, they were “subjected to a harassment and

intimidation campaign by Defendants Troiano, Campel, and Brito,” which included the following:

(1) Campel followed E.S. around the La Corte School for an unspecified amount of time (id. at ¶

25); (2) Campel “took photos of Mr. Sanchez’ car when he picked up E.S. from school” (id.); (3)

“[o]n numerous occasions Defendant Troiano entered E.S.’ classroom and stood near his locker”

2Plaintiffs allege that the incident occurred on or about June 2, 2017 and provide no documentary

support for their assertion. Compl. at ¶ 15. Defendants allege that the incident occurred on or

about June 21, 2017, citing: (1) a video that matches the facts at hand and identifies the date as

June 21, 2017 (Mot. to Dismiss at 3, fn. 1); and (2) an online petition, started by Plaintiff Charles

Sanchez (E.S.’s father) that alleges the facts in the Complaint and identifies the date of the incident

as June 21, 2017 (see Petition, “Music Teacher Joseph Troiano Removed from Schools and Staff

Re-Evaluated” (last visited Dec. 23, 2020), https://www.change.org/p/board-of-education-of-

elizabethmusic-teacher-joseph-troiano-removed-from-schools-and-staff-re-evaluated).

(id. at ¶ 26); (4) Troiano “gave dirty looks” to E.S. and his brothers, who also attend La Corte (id.);

and (5) Defendants, although it is not specified who, “hired a private investigator that visited the

Sanchez’ home” (id. at ¶ 27).3 As a result of Defendants’ actions, E.S. has allegedly suffered

severe and permanent physical injuries and severe emotional distress, and Charles and Elizabeth

Sanchez have allegedly suffered a loss of companionship and per quod damages.Compl. at ¶ 29.4

II. LEGAL STANDARD

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),

it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-

pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of

3Plaintiffsallege the subsequent actions by Defendant Troiano, Campel,and Brito evidence a lack

of training, supervision andsensitivity to the situation. Compl. at ¶¶ 27–28, 30.

4 The Court notes that the Elizabeth BOE Defendants produced a video as an attachment to their

Motion to Dismiss, which they allege is a video of the incident in La Corte School’s gymnasium.

SeeOpp’nat 3. The Court will not consider the video at this time because, at the motion to dismiss

stage, we are limited to reviewing “the allegations contained in the complaint, exhibits attacked to

the complaint, and matters of public record.” Pension Ben. Guar. Corp. v. White Consol. Indus.,

Inc., 998 F.2d 1192, 1196 (3d Cir. 1993);seeForlina v. Doe, No.16-2696, 2019 WL 5188400, at

*9 (E.D. Pa. Oct. 11, 2019) (“The [] Defendants’ reliance on surveillance video . . . to support their

arguments in favor of dismissal [is] misplaced. That is evidence that the Court may not consider

at this [motion to dismiss] stage of the proceedings.”) In support of their assertion to include the

video in the Complaint, the Elizabeth BOE Defendants cite toDel Turco v. Randolph Twp. Police

Dep’t, No.18-15086, 2020 WL 999210, at *3 (D.N.J. Mar. 2, 2020). However, in Del Turco, the

Courtpermitted consideration of avideo at such an early stage because “the video [wa]s submitted

by plaintiff himself”; moreover, there was no dispute between the parties as to what the video

depicted. Id. (internal citations omitted). By contrast, here, the video is submitted by the

Defendants, and Plaintiffs strongly contest the Elizabeth BOE Defendants’ interpretation of the

events that transpire in the video. See id.; compare Mot. to Dismiss at 12–13 (alleging that the

video shows Troiano did not punch E.S.and alsoshows E.S. “swing[ing] his arms in a half-punch,

half-slap towards Troiano”) with Opp’n at 5–6 (alleging that the video shows E.S. did not take

“any apparent strikes at Defendant Troiano” but rather shows “E.S. being struck or pushed from

behindby Defendant Troiano”).

the non-moving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions . . . will not do.’ Nor

does a complaint suffice if it tenders ‘naked assertion[s]’devoid of ‘further factual enhancement.’”

Iqbal,556 U.S. at 678 (citations omitted). However, “the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Thus, when reviewing complaints for failure to state a claim, district courts should engage in a

two-part analysis: “First, the factual and legal elements of a claim should be separated . . . .

Second, a District Court must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside,

578 F.3d 203, 210–11 (3d Cir. 2009) (citations omitted).

III. DISCUSSION

The Complaint asserts seven claims against each Defendant,whicharise out of the

alleged incident in the La Corte School’s gymnasium: (1) assaultand battery; (2) negligence; (3)

intentional infliction of emotional distress; (4) violation of 42 U.S.C. § 1983 (amendment

unspecified); (5) violation of the Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13; (6)

neglect to prevent conspiracy, 42 U.S.C. § 1986; and (7) punitive damages under N.J.S.A.

2A:15-5.12.Compl. at 8–21. The Elizabeth BOEDefendants move to dismissthe assault and

battery (Count 1) and intentional infliction of emotional distress (Count 3) claims against

Campel,Brito and the Elizabeth BOE, for failure to state a claim.Mot. to Dismiss at 6–7,10–12.

The Elizabeth BOE Defendants also move to dismiss Counts 2, 4, 5 and 6as to all Defendants,

for failure to state a claim.Id. at 8, 13–19. The Court will address each of the claims, and both

parties’ arguments for and against dismissal, in turn.

1) Count 1(Assault and Battery): Plaintiffs Fail to State a Claim as to Campel, Brito,

and the Elizabeth BOE

Under Count 1, Plaintiffs allege that Defendant Troiano committed assault and battery

upon E.S. and do not specifically allege that the other Defendants assaulted and/or physically

inflicted harm upon E.S. Compl. at ¶ 33–40. In their opposition to the Motion, “Plaintiffs do not

object to dismissal of the claims of assault and battery as to Defendants [B]rito and Campel because

they did not assault or batter any of the Plaintiffs.” Opp’n at 8. However, Plaintiffs object to the

dismissal of the claim against Elizabeth BOE, arguing that discovery could lead to a finding that

Elizabeth BOE is liable for assault and battery, presumably under a theory of respondeat superior

and vicarious liability.5 Id. at 9. The Court disagrees.

To state a claim for assault and battery under New Jersey law, a plaintiff must allege that

the tortfeasor “act[ed] intending to cause a harmful or offensive contact with the person of the

other or a third person, or an imminent apprehension of such a contact.”Leang v. Jersey City Bd.

of Educ., 198 N.J. 557, 591(2009) (emphasis added). Under the New Jersey Tort Claims Act (the

“NJTCA”), “[a] public entity is not liable for the acts or omissions of a public employee

constituting a crime, actual fraud, actual malice, or willfulmisconduct.” N.J.S.A. § 59:2-10.6 This

provision precludes respondeat superior (or vicarious liability) claims against a public entity for

assault and battery by one of its employees, because such a claim necessitates a showing of

intentional or willful misconduct by the employee. Grandizio v. Smith, No. 14-3868, 2015 WL

58403, at *7 (D.N.J. Jan. 5, 2015); see Merman v. City of Camden, 824 F. Supp. 2d 581, 597

5 The Court presumes that a theory of respondeat superior is applicable here because Plaintiffs’

allegations focus solely on alleged misconduct by employees of the La Corte School.

6See Parsons v. Mullica Tp.Bd. of Educ., 440 N.J. Super. 79, 95 (App. Div. 2005)(“. . . the clearest

and most important command of the [NJTCA], namely, [is] that the immunities set forth in the

[NJTCA] prevail over any liabilities.”) (quotingTice v. Cramer,133 N.J. 347, 370–71 (1993)).

(D.N.J. 2010) (dismissing plaintiff's claims that the city was vicariously liable for the alleged

assault and battery by the city’s police officers based on immunity under the NJTCA); Ward v.

Barnes, 545 F. Supp. 2d 400, 420–21 (D.N.J. 2008) (“The Court finds there is no legal basis for

permitting respondeatsuperior liability to public entities on the theories of battery and intentional

infliction of emotional distress, which are acts that require ‘actual malicious or willful

misconduct.’”) (citing N.J.S.A. 59:2-10)).

Thus, under the NJTCA, the Elizabeth BOE7 is immune from any liability for assault and

batteryunder a theory of respondeat superior or vicarious liability,meaningfurther discovery (or

amendment of the Complaint) on the issue would be futile.8 Thus, Plaintiffs’ assault claim

against Campel, Brito, and Elizabeth BOEis dismissed with prejudice.See Grandizio, 2015 WL

58403, at *7(dismissing plaintiff’s assault and battery claim with prejudice because defendant

public entity’s “immunity from suit renders an amendment futile”).

2) Negligence(Count 2): Plaintiffs State a Claim as to all Defendants

Under Count 2, Plaintiffs allege that Defendants are liable fornegligentlybreaching their

duty to protect students from foreseeable harm, and thereby causing injury to E.S. Compl. at ¶¶

41–49. Elizabeth BOE Defendants argue that: (1) Elizabeth and Charles Sanchez’ individual

negligence claims should be dismissed as to all Defendants because theyhave failed to satisfy

7 Elizabeth BOE is a public-school district headquartered in the City of Elizabeth, Union County,

New Jersey. ECF No. 3 (“Compl.”) at ¶ 5. This Court has consistently held that a public-school

Board of Education qualifies as “public entity” under the meaning of the NJTCA. See, e.g.,

Williams v. Lenape Bd. of Educ., No.17-7482, 2020 WL 2111221, at *20 (D.N.J. May 4, 2020).

8 Plaintiffs argue that the Elizbaeth BOE may nevertheless be held liable for an intentional tort

committed by one of its employees, citing Hardwicke v. American Boychoir School. Opp’n at 9

(citing 368 N.J. Super. 71, 104 (App. Div. 2004)). However, in Hardwick, the Defendant was a

“very small private school,” not a public school, meaning N.J.S.A. 59:2-10 was inapplicable.

NTJCA’s medical expense threshold9; and (2) eachPlaintiffs’ negligence claim should be

dismissed as to Campel and Brito because Plaintiffs have failed to sufficiently plead that Campel

and Brito breached a duty. The Court dismisses both arguments below, finding that Plaintiffs’

Second Count satisfies the applicable pleading standards.

First, with regards to themedical threshold argument,the NJTCA prohibits an award of

damages against a public entity or public employee for pain and suffering resulting from an

injury, unless the claimant suffers “permanent loss of bodily function, permanent disfigurement

or dismemberment where the medical treatment expenses are in excess of $3,600.” N.J.S.A. §

59:9-2(d). The $3,600threshold appliesto negligence-based claims, includingclaims for

negligent infliction ofemotional distress (“NIED”).See Estate of Del Rosario v. Paterson Police

Dep’t, No. 14-5167, 2020 WL 373354, at *9 (D.N.J. Jan. 23, 2020); J.H. v. Mercer County Youth

Detention Center, 396 N.J. Super. 1, 21(App. Div. 2007). However, there is no indicationin the

statutory language that §59:9-2(d) creates a pleading standard; and the Elizabeth BOE

Defendants have failed to provide any authority for the proposition that a plaintiff must plead the

threshold amount of medical expenses in a complaint in order to survive a Rule 12(b)(6) motion.

Instead, the cases cited by the Elizabeth BOE Defendants indicate that courts dispose of

the medical thresholdissue, at earliest,at the summary judgment stage.See Estate of Del

Rosario, 2020 WL 373354, at *9 (granting defendants’ summary judgment motion on plaintiffs’

NIED claim because plaintiffs failed to provide evidence of permanent injury, aggravating

circumstances, or medical expenses exceeding the monetary threshold); J.H. v. Mercer, 396 N.J.

Super. at 21 (granting defendant’s summary judgment motion on plaintiff’s negligence and

9 The Elizabeth BOE Defendants initially sought to dismiss E.S.’s claims as well on this basis

(Mot. to Dismiss at 8), but later withdrew their argument as to E.S. because Plaintiffs provided

proof of$5,165.96 in medical expenses related toE.S.’sinjuries(Reply at 11 (citing (Opp’n, Exh.

1)).

intentional infliction of emotional distress claims because the record lacked competent evidence

establishing that plaintiff suffered a permanent injury or that plaintiff will reach the monetary

threshold). Dismissal of Plaintiff’s negligence claims underN.J.S.A. § 59:9-2(d), without the

benefit of discovery, would be premature at this juncture. See Luna Garcia v. N. Brunswick Pub.

Sch., No.20-1031, 2020 WL 5201343, at *6 (D.N.J. Sept. 1, 2020).

Second, the Court addresses Campel and Brito’sargument regarding the sufficiency of the

pleading against them. To make a prima facie case for common law negligence in New Jersey, a

plaintiff must plead four elements: (1) a duty of care, (2) a breach of that duty, (3) proximate

cause, and (4) actualdamages.See Townsend v. Pierre,221 N.J. 36, 51 (2015);Brunson v. Affinity

Fed. Cred. Union, 199 N.J. 381, 400 (2009). Accepting all the allegations in the Complaint as

true, Plaintiffs have adequately pled that: (1) Campel and Brito, as school officials, owed a duty

of care to E.S. (Compl. at ¶¶ 42, 45); (2) Campel and Brito breached that duty by participating in

and/or approving a harassment and intimidation campaign against E.S. and his family (id. at ¶ 25);

(3) E.S. suffered severe and permanent injuries as a result (id. at ¶¶ 39–40); and (4) E.S. and his

family have incurred actual damages (id. at ¶ 48).

Campel and Brito concede that they owed a duty of care to E.S.(seeReply at 9),as“[i]t is

well established that ‘school officials have a general duty to exercise reasonable supervisory care

for the safety of students entrusted to them, and are accountable for injuries resulting from failure

to discharge that duty.’”Hayward v. Salem City Bd. of Educ., No. 14-5200, 2016 WL 4744132, at

*10 (D.N.J. Sept. 12, 2016) (quoting Jerkins ex rel. Jerkins v. Anderson, 922 A.2d 1279, 1285

(N.J. 2007)). Nevertheless, Campel argues that specific allegations within the Complaint––(1)

falsely denying the existence of a surveillance video of the incident; (2) following E.S. around the

La Corte School for an unspecified amount of time; and (3) taking photos of Mr. Sanchez’ car

when he picked up E.S. from school––do not suffice to breach that duty. Reply at 9. Likewise,

Britoargues thatintentionally failingto disclose surveillancevideo when reporting the incident to

the DCPP does not indicate a breach of his duty of care towards E.S. Id. These allegations alone

may be insufficient to establish a negligence claim; however, at this stage, they support Plaintiffs’

allegations of a campaign of harassment and intimidation against E.S and are “sufficient to show

that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at210–11 (citations omitted).

Accordingly, Plaintiffs’ Second Count meets the Rule 12(b)(6) pleading standard as to all

Defendants.

3) Intentional Infliction of Emotional Distress (Count 3): Plaintiffs Fail to State a

Claim as to the Elizabeth BOE

In their Third Count, Plaintiffs claim that Defendants are liable for intentional infliction of

emotional distress (“IIED”) by directing extreme and outrageous conduct toward E.S. and his

family.

As a preliminary matter, the Court finds that the IIED claimis dismissed as to the Elizabeth

BOE––to the extent that Plaintiffs allege respondeat superior or vicarious liability against the

Elizabeth BOE––pursuant toNJTCA’s immunity provision, N.J.S.A. § 59:2-10. “[T]o establish a

claim for intentional infliction of emotional distress, the plaintiff must establish intentional and

outrageous conduct by the defendant, proximate cause, and distress that is severe.” Buckley v.

Trenton Sav. Fund Soc’y, 111 N.J. 355, 366 (1988). “For an intentional act to result in liability,

the defendant must intend both to do the act and to produce emotional distress.” Id. The NJTCA

precludes claims against public entities like the Elizabeth BOE for IIED claims under a theory of

respondeat superior liability, because IIEDrequiresa showing of intentional or willful misconduct

by the employee. See supra Section 5; Luna Garcia, 2020 WL 5201343, at *6 (“Intentional or

reckless conduct is an element of intentional infliction of emotional distress . . . Therefore, under

the NJTCA, [d]efendant North Brunswick BOE is not liable for any intentional infliction of

emotional distress caused by [d]efendants Drucker or Vecchio [school teachers]”); Ward, 545 F.

Supp. 2d at 420–21. Thus, the Court dismisses Count 3 of the Complaint against the Elizabeth

BOE, to the extent that claim is based on respondeat superior or vicarious liability,with prejudice.

Next, the Court evaluates whether Plaintiffs failed to state an IIED claim against Campel

and Brito. Campel and Brito argue that: (1) the allegations against them do not rise to the level

of “extreme and outrageous conduct” that is“so outrageous in character, and so extreme indegree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly

intolerable in a civilized community”; and (2) Plaintiffs have not adequately pled that Campel and

Brito intended to “both do the [outrageous act] and to produce emotional distress.” Mot. to Dismiss

at 10–11 (quoting Buckley, 111 N.J. at 366). The Court dismisses both arguments, as it finds that

Plaintiffs sufficiently pledan IIED claim against Campel and Brito.

The Court recognizes that IIED liability does not extend to “mere insults, indignities,

threats, annoyances,petty oppressions, or other trivialities.”49 Prospect Street v. ShevaGardens,

227 N.J. Super. 449, 472 (App. Div. 1988) (citing Restatement (Second) of Torts § 46, cmt.

(1965)). However, the Complaint’s allegation of anintimidationand harassmentcampaign against

a 12-year old boy and his family is not a mere ‘triviality,’ and further discovery may reveal facts

that support Plaintiffs’ general allegations.10 Moreover, the Complaint adequately alleges that

Brito and Campel intended not only to undertake the harassment campaign, but also intended to

cause emotional distress, because, implicitly, a “harassment and intimidation campaign” (Compl.

at ¶ 25) is executed to cause emotional distress. Furthermore, the Complaint specifically alleges

10 The Court would like to clarify that, standing alone, allegations of following a student around

school, taking pictures of his father’s car, and failing to disclose a piece of evidence when reporting

an incident to the DCPP, maynot suffice toestablishan IIED claim. However, at this stage, those

specific allegations are viewed as support for the general allegation of an “intimidation and

harassment campaign” against Plaintiffs.

that Campel “followed E.S. around school in an effort to scare him and make him feel

uncomfortable”and that all Defendants hired a private investigator “as part of an ongoing effort to

harass and intimidate E.S. and his family.” (id. at ¶¶ 25, 27) (emphasis added). Thus, Plaintiffs

have sufficiently pled an IIED claim as to all Defendants except the Elizabeth BOE (which receives

immunity for respondeat superior and vicarious liability claims).

4) Violation of 42 U.S.C. § 1983 (Count 4): Plaintiffs Fail to State a Claim as to all

Defendants

In Count 4, Plaintiffs assert a § 1983claim that fails to meet applicable pleading

standards. To state a claim under § 1983a plaintiff must allege: (1) the violation of a federal

right; and (2) that the alleged deprivation was committed by a person actingunder color of state

law. West v. Atkins, 487 U.S. 42, 48 (1988). It is important for the plaintiff to identify a specific

constitutional or federal right that was violated; otherwise, the Court is unable to evaluate the

sufficiency of the complaint and defendants are not properly put on notice of Plaintiffs’ claims.

Stevens v. Delaware Cty., No. 08-02358, 2008 WL 11348460, at *4 (E.D. Pa. Dec. 30, 2008);

Ingliema v. Town of Hampton,No. 05-3497,2007WL 1101441, at *9 (D.N.J. Apr. 10, 2007);

see Graw v. Fantasky, 68 F. App'x 378, 382 (3d Cir. 2003) (affirming dismissal of Fourteenth

Amendment Claim where plaintiff did not “articulate clearly the basis for the claim”). “For

those reasons, ‘failure to identify a right, privilege or immunity secured by the Constitution that

was violated merits dismissal of the cause of action.”’ Ingliema,2007WL 1101441, at *9

(dismissing § 1983 claim where plaintiff pled “that his‘constitutional and civil rights’ were

violated by Defendants’ conduct”).11 Here, Plaintiffs allege that Defendants deprived “Plaintiffs

11 Plaintiffs assert that a section 1983 allegation does not require specifying which right was

violated (see Opp’n at 15) but the cases cited on this point do not support their assertion. See

Gomez v. Toledo, 446 U.S. 635, 640 (1980); Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606,

609 (3d Cir. 2011). In Gomez, the plaintiff did in fact identify the constitutional right at issue, as

of the rights and privileges secured by the Constitution” (Compl. at ¶ 59) without identifying the

specific constitutional right that was violated, and without alleging that Defendants acted under

the color of law. See id.at ¶ 57–60. Thus, Plaintiffs § 1983claim must be dismissed for failure

to state a claim.12

5) Anti-Bullying Bill of Rights Act (Count 5): Plaintiffs Fail to State a Claim as to

All Defendants

In Count 5, Plaintiffs claim that Defendants’ harassment and intimidation violated

Plaintiffs’ rights and privileges secured by the Anti-Bullying Bill of Rights Act,N.J.S.A. §

18A:37-13.Compl. at ¶¶ 61–66. As the Elizabeth BOE Defendants correctly noted (see Mot. to

Dismiss at 24), the Anti-Bullying Bill of Rights Act does not create an independent cause of

action. N.J.S.A. §§ 18A:37-18 (“This act does not create or alter any tort liability”);Dunkley v.

Bd. of Educ. of the Greater Egg Harbor Reg’l High Sch. Dist., No. 14–7232, 2016 WL 6134518,

at *8 (D.N.J. Oct. 20, 2016) (holding that the New Jersey Anti-Bullying Bill of Rights Act

“cannot support an independent cause of action”); K.J. v. Greater Egg Harbor Reg’l High Sch.

Dist. Bd. of Educ., No. 14–145, 2015 WL 5039460, at *14 (D.N.J. Aug. 26, 2015) (“[T]he [New

Jersey Anti–Bullying Bill of Rights Act] plainly states that it creates no tort liability.”)).

Plaintiff’s opposition brief is silent in response to Defendant’s arguments for dismissing this

he “alleged that his discharge by [defendant] violated his right to procedural due process.” 446

U.S. at 640. And in Harvey, there was no discussion of applicable pleading standards––the case

concerned post-trial relief and the defendants conceded that plaintiff established a deprivation of

a constitutional right. 635 F.3d at 609.

12In their Opposition, Plaintiffs allege, for the first time, that their First and Fourteenth Amendment

rights were violated; however, the Court cannot accept an amendment to the Complaint via their

briefs. See Olson v. Ako, 724 F. App’x 160, 166 (3d Cir. 2018) (“it is ‘axiomatic that the complaint

may not be amended by the briefs in opposition to a motion to dismiss’”) (quoting Pa. ex rel.

Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988). The Court instructs Plaintiffs to

properly amend their Complaint, and in doing so, consider the additional burdens imposed by the

Monell doctrine when asserting their section 1983 claim against the Elizabeth BOE.

claim and further amendment on the issue would be futile; thus, the Court will dismiss Plaintiffs’

Seventh Count as to all Defendants with prejudice. See R.K. v. Bender, No. 17-1299, 2017 WL

4948066, at *3 (D.N.J. Nov. 1, 2017).

6) Violation of 42 U.S.C. § 1986 (Count 6): Plaintiffs Fail to State a Claim as to All

Defendants

In Count 6, Plaintiffs claim that all Defendants violated section 1986 (for neglecting and

failing to prevent wrongful and illegal acts despite having the power to do so), but Plaintiffs fail

to allege an underlying violation of section 1985. Compl. at 4] 67-69. “Under the express terms

of the statute, a claim under section 1986 is entirely dependent on the viability of an underlying

section 1985 claim.” Dare v. Twp. of Hamilton, No. 13-1636, 2013 WL 6080440, at *9 (D.N.J.

Nov. 18, 2013) (citing 42 U.S.C. § 1986 (“Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be

committed, and having power to prevent or aid in preventing the commission of the same,

neglects or refuses so to do, if such wrongful act be committed, shall be liable . . .”) (emphasis

added)). Thus, a section 1986 claim requires a valid underlying section 1985 claim. /d.;

D?’Aurizio v. Palisades Park, 963 F. Supp. 387, 394 (D.N.J. 1997). Because Plaintiffs have

failed to allege any section 1985 claim, they have failed to allege a viable section 1986 claim;

thus, the Sixth Count must be dismissed in its entirety, but without prejudice at this time.

I. CONCLUSION

Accordingly, the Court grants the Elizabeth BOE Defendants’ Motion to Dismiss (ECF

No. 7) the Complaint (ECF No. 3) in part and denies it in part, with the following claims dismissed

as follows:

e Plaintiffs’ assault and battery claim (Count 1) is dismissed with prejudice as to Campel,

Brito, and the Elizabeth BOE; and

13

e Plaintiffs’ IED claim (Count 3) is dismissed with prejudice as to the Elizabeth BOE; and

e Plaintiffs’ claim under § 1983 (Count 4) is dismissed without prejudice as to all

Defendants; and

e Plaintiffs’ claim under the Anti-Bullying Bill of Rights Act, N.J.S.A. § 18A:37-13 (Count

5) is dismissed with prejudice as to all Defendants; and

e Plaintiffs’ claim under § 1986 (Count 6) is dismissed without prejudice as to all

Defendants.

As a result of the Court’s disposition of the Elizabeth BOE Defendants’ motion to dismiss, the

following claims will proceed accordingly:

e Count | for assault and battery will proceed against Troiano and Defendant the La Corte

School; and

e Count 2 for negligence will proceed against all Defendants; and

e Count 3 for TED will proceed against Campel, Brito, Troiano, and the La Corte School.

An appropriate Order accompanies this Opinion.

Date: December 23, 2020 CA. :

fn

~- HON. CLAIRE C. CECCHI, U.S.D.J. □

14