L.C. VS. MIDDLESEX COUNTY PROSECUTOR'S OFFICE (L-1292-17, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3654-18

L.C.1,

Plaintiff-Appellant,

v.

MIDDLESEX COUNTY

PROSECUTOR'S OFFICE,

COUNTY OF MIDDLESEX,

NEW JERSEY, BOROUGH OF

SAYREVILLE, NEW JERSEY,

ANDREW CAREY, Prosecutor,

Middlesex County Prosecutor's

Office, CHRISTOPHER KUBERIET,

1st Asst. Prosecutor, Middlesex

County Prosecutor's Office,

DETECTIVE DAVID ABROMAITIS,

Investigator/Detective, Middlesex

County Prosecutor's Office,

SAYREVILLE BOARD OF

EDUCATION (BOE), DR. RICHARD

LABBE, Superintendent, Sayreville

Schools (BOE), MICHAEL

MACAGNONE, President, Sayreville

Board of Education (BOE), THE

1

Pursuant to R.1:38-3(d)(5) initials are continued for plaintiff to maintain

confidentiality.

BUSCH LAW GROUP, JONATHAN

BUSCH, attorney for the Sayreville

Board of Education (BOE), ARI

SCHNEIDER, attorney for the

Sayreville Board of Education (BOE),

TERESA RAFFERTY, Piscataway

Superintendent of Schools,

Defendants-Respondents.

_______________________________

Argued March 16, 2021 – Decided April 9, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Docket No. L-1292-17.

Kevin T. Flood argued the cause for appellant (Kevin

T. Flood and Paul DePetris, on the briefs).

Elisa M. Pagano argued the cause for respondents

Andrew Carey, Christopher Kuberiet, and Detective

David Abromaitis (Chiesa Shahinian & Giantomasi,

PC, attorneys; Matthew E. Beck, Elisa M. Pagano, and

Chelsea P. Jasnoff, on the brief).

Keith J. Murphy argued the cause for respondents Dr.

Richard Labbe and Michael Macagnone (Gordon Rees

Scully Mansukhani, LLP, attorneys; Keith J. Murphy,

of counsel and on the brief).

Meredith Kaplan Stoma argued the cause for

respondents The Busch Law Group, LLC, Jonathan

Busch, and Ari Schneider (Lewis Brisbois Bisgaard &

Smith, LLP, attorneys; Meredith Kaplan Stoma and

Jeffrey S. Leonard, on the brief).

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Michael A. Pattanite, Jr., argued the cause for

respondent Teresa Rafferty (Lenox Law Firm,

attorneys; Michael A. Pattanite, Jr., on the brief).

PER CURIAM

Plaintiff L.C. appeals from October 5, 2017, July 23, 2018, and March 15,

2019 orders dismissing his complaint for failure to state a claim and a February

23, 2018 order denying reconsideration of the October 5, 2017 order. He also

challenges a March 28, 2017 order transferring venue and an April 28, 2017

order denying reconsideration of the venue transfer.

This matter arises from numerous incidents which occurred in the

Sayreville War Memorial High School (SHS) locker room in September 2014,

involving plaintiff and several other juvenile members of the SHS football team

regarding the alleged sexual assault of another juvenile. The Middlesex County

Prosecutor's Office (MCPO) investigated the incident and charged plaintiff, then

a juvenile, with offenses, which if committed by an adult, would constitute

conspiracy to commit aggravated criminal sexual contact, aggravated assault,

hazing, riot, and criminal restraint. Several other juveniles on the SHS football

team were also charged. MCPO Detective David Abromaitis signed the

complaint.

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Following the filing of the juvenile complaint and based on the allegations

contained in the arrest warrant, SHS suspended plaintiff for violating the

Sayreville Board of Education's (SBOE) code of conduct. The day after

plaintiff's suspension, his parents received notice of a disciplinary hearing

regarding his suspension from the SBOE pursuant to N.J.A.C. 6A:16-7.3. On

October 21, 2014, plaintiff's counsel informed SBOE plaintiff waived the time

requirement set forth in N.J.A.C. 6A:16-7.3(a)(10)(iii), which requires the

SBOE to hold a hearing no later than thirty days following the suspension. As

a result, the SBOE adjourned the disciplinary hearing until after the final

disposition of the juvenile delinquency matter.

In October 2014, Abromaitis and First Assistant Prosecutor Christopher

Kuberiet disclosed the records of the charged juveniles, including plaintiff, to

SBOE's attorneys, Jonathan Busch and the Busch Law Group (collectively, the

Busch defendants). The Busch defendants thereafter disclosed the records to

Dr. Richard Labbe, superintendent of Sayreville schools, and Michael

Macagnone, president of the SBOE (collectively, the SBOE defendants).

In April 2015, the MCPO filed a second complaint charging plaintiff with

four additional acts of delinquency relating to the original incident. Abromaitis

signed the complaint.

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On July 1, 2015, plaintiff was adjudicated of offenses, which if committed

by an adult, would constitute criminal restraint, simple assault, and disorderly

conduct, and acquitted of the remaining offenses. Following a motion for

reconsideration, the Family Part judge acquitted plaintiff of criminal restraint

on August 7, 2015. In August 2016, the court dismissed the adjudications for

simple assault and disorderly conduct.

In the interim, on July 13, 2015, plaintiff, his parents, and his counsel met

with Labbe, Busch, and Schneider regarding his return to SHS following his

suspension. According to plaintiff's complaint, Labbe, Busch, and Schneider

stated they would do everything in their power to prevent his return, and Busch

suggested plaintiff transfer out of SHS, advising him that several of the other

juveniles charged already accepted offers of transfer. Plaintiff's parents

demanded a hearing and the meeting ended.

SBOE notified plaintiff his disciplinary hearing had been rescheduled for

August 31, 2015. Prior to the hearing, SBOE filed an emergent application

requesting permission to use the audio recordings from plaintiff's juvenile

delinquency proceeding at the disciplinary hearing, which the Family Part judge

denied.

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On August 31, 2015, the MCPO issued a "News Release" relating to the

four incidents of misconduct at SHS, between September 9 and September 30,

2014. The release read as follows:

[News Release,] Sayreville football sex abuse

investigation drawing to a close [(Aug. 31, 2015)]

Middlesex County Prosecutor Andrew C. Carey

announced today that six of seven teenagers charged

with sexually assaulting and/or abusing four other

teammates at [SHS] have been placed on probationary

terms and ordered to each serve [fifty] hours of

community service, but will avoid being labeled as

Megan's Law sex offenders.

The sentences were imposed in New Brunswick

by a Family Court judge after four of the six football

players pleaded guilty in Family Court to charges of

committing a disorderly persons offense of hazing, and

third degree endangering the welfare of their younger

fellow teammates. Each of those four defendants was

placed on probation for two years.

The two others were placed on one-year

probationary terms after they were adjudicated

delinquent following a trial in Family Court. A seventh

juvenile defendant is awaiting a trial in Family Court.

No trial date has been set.

Prosecutor Carey said that while these juveniles

were charged with serious sexual offenses, the cases

were resolved in accordance with juvenile laws and in

the best interests of the juvenile defendants, the victims

and their families. As part of the plea agreements, the

[MCPO] did not pursue the imposition of mandatory

sex offender registration required under Megan's Law.

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"As was previously disclosed, the [MCPO]

determined that the defendants would not be tried as

adults and that the Middlesex County Family Court

remains the proper venue for these cases," Prosecutor

Carey said. "While the Code of Juvenile Justice

provides confidentiality for the protection of juveniles,

that confidentiality, unfortunately, allows for certain

individuals to unscrupulously mislead the public as to

what occurred at the school and during juvenile

proceedings."

....

"The facts that were alleged by the [MCPO] at

the beginning of this case have clearly been proven in

a court of law. The community of Sayreville needs to

know that these serious crimes occurred, and now must

work together to heal. I thank those who went to

extraordinary lengths throughout the proceedings to

protect the rights of the victims, the juvenile

delinquents, and the families of those involved,"

Prosecutor Carey said.

The four juvenile defendants who have pleaded

guilty have been ordered to provide truthful testimony

against their co-defendants, and were ordered to have

no contact with the victims.

In addition, one of them was placed on curfew

while serving his two year probationary term.

As part of the plea agreements, the [MCPO] did

not insist on having these juvenile defendants

registered as Megan's Law offenders. The decision was

reached after the [MCPO] obtained input from the

victims and their families.

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The two other juvenile defendants who were

adjudicated delinquent on July 1, 2015, stood trial in a

closed Family Court trial. Both of them were placed on

probation for one year and were ordered to serve [fifty]

hours of community service.

During the trial, the high school principal

testified as a character witness for both of the juvenile

defendants, despite having no personal knowledge of

the assaults and abuses that occurred in the high school

locker room.

One of the trial defendants was deemed

delinquent on charges of a disorderly persons simple

assault, disorderly conduct, hindering his own

apprehension by lying to police and hindering the

apprehension of his co-defendants by lying to police.

He also was found delinquent on counts of obstruction

and false swearing. The majority of the offenses would

have been considered fourth degree indictable offenses,

if they had been committed by an adult.

....

The other juvenile tried in Family Court was

found delinquent on a disorderly persons simple assault

charge, and a petty disorderly persons count of

engaging in disorderly conduct for his role in the hazing

and sexual conduct.

Initially, the Family Court judge had adjudicated

them both delinquent of criminal restraint. Following

a motion by the defense to reconsider the decision, and

without the receipt of any additional testimony, the

judge reversed his own findings of fact, and instead

found them not guilty of criminal restraint, thus sparing

them from mandatory registration as Megan's Law

offenders.

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The seven juvenile defendants were taken into

custody in October 2014, after the investigation

determined they each played roles in the attacks upon

their fellow teammates in four separate incidents at the

high school between September 19, 2014 and

September 30, 2014.

During the initial appearances, each time the

seven juvenile defendants were taken into Family

Court, their identities were protected by authorities who

transported them in undercover vehicles and brought

them into court through security entrances that are

outside the public view.

The juvenile defendants were charged during an

investigation by the [MCPO].

The first incident occurred on September 19,

2014, when a [seventeen]-year-old juvenile defendant

"body slammed" a [fifteen]-year-old victim to the floor

and pretended to stomp and kick the victim, exposing

him to bodily injury.

On September 26, 2014, the same [seventeen]-

year-old defendant, along with the two who were

adjudicated delinquent following the trial, and another

[sixteen]-year-old male who is awaiting trial, took part

in an attack of a [fourteen]-year-old boy.

The victim also was forcibly knocked to the floor.

One defendant held the victim, while at least two of the

other defendants grabbed his penis and attempted to

digitally penetrate his anus. Two to five other students,

who could not be identified by the victim, surrounded

him during the sexual assault.

....

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Further investigation showed that on September

29, 2014, three [fifteen]-year-old defendants were

charged with sexually assaulting a [fourteen]-year-old

boy, whose anus was digitally penetrated through his

clothing by one of the defendants, while the other two

held the victim down. All three defendants have

pleaded guilty and admitted to the penetration.

The final incident occurred on September 30,

2014, when the [fifteen]-year-old male charged with the

digital penetration on the previous day, swiped his

fingers between the buttocks of a [fourteen]-year-old

boy. The defendant also pleaded guilty to the lesser

charges in that sexual assault.

On September 1, 2015, plaintiff filed a petition and motion for emergent

relief with the Commissioner of Education, seeking dismissal of SBOE's

disciplinary charges and reinstatement to SHS. The application was transferred

to the Office of Administrative Law (OAL) for adjudication by an administrative

law judge (ALJ). On September 10, 2015, the ALJ issued a written decision

denying plaintiff's application. The judge also ordered SBOE to hold plaintiff's

disciplinary hearing by September 16, 2015. The SBOE scheduled a hearing for

that date.

On September 3, 2015, the SBOE filed a motion in the Family Part for

leave to admit a portion of MCPO's investigation file at the disciplinary hearing

and to introduce testimony from Abromaitis relating to his investigation of the

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underlying incident. The day before plaintiff's disciplinary hearing, the Family

Part judge denied SBOE's motion to admit MCPO's investigation file but

permitted the introduction of Abromaitis's testimony limited to matters within

his personal knowledge, not the investigation file. The judge stayed plaintiff's

disciplinary hearing pending appeal. On September 15, 2015, SBOE advised

plaintiff his disciplinary hearing was canceled pending an appeal of the judge's

order.

On September 17, 2015, we granted plaintiff's application for leave to

appeal, which sought to vacate the stay of the disciplinary hearing. However,

pending appeal, plaintiff's parents transferred custody of him to a family

member residing in Piscataway so plaintiff could attend Piscataway High School

(PHS) for his senior year, where plaintiff wished to play football. SBOE signed

waiver forms to permit the other SHS students involved in the incident, all of

whom entered pleas in their juvenile matters and transferred from SHS, to

participate on their new high school football teams. Although SBOE initially

indicated it would sign a waiver form for plaintiff, it subsequently refused to do

so. Piscataway Schools Superintendent Teresa Rafferty permitted plaintiff to

enroll at PHS, but precluded him from participating in athletics because his

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juvenile adjudications and participation on the team could endanger PHS's New

Jersey State Interscholastic Athletic Association (NJSIAA) eligibility.

On October 20, 2015, we denied plaintiff's motion to vacate the stay and

reversed and remanded the part of the Family Part judge's order holding SBOE

was not entitled to the records from plaintiff's juvenile delinquency proceedings.

We instructed the judge to determine whether good cause existed to release

plaintiff's records pursuant to N.J.S.A. 2A:4A-60(a)(6).

By letter dated November 3, 2015, plaintiff's counsel advised the Family

Part judge plaintiff no longer intended to return to SHS, and withdrew the

request for a disciplinary hearing. On November 8, 2015, plaintiff's counsel

again wrote to the judge reiterating his position the court did not need to conduct

the remand proceedings to determine if there was good cause to release

plaintiff's records.

On November 9, 2015, SBOE's counsel wrote to the judge with concerns

plaintiff would not concede he waived his right to a disciplinary hearing and

accepted the discipline imposed by SBOE. SBOE's counsel also voiced concern

plaintiff would later file a civil suit arguing SBOE deprived him of a disciplinary

hearing or SBOE's disciplinary decision was arbitrary. MCPO joined SBOE's

position.

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The Family Part judge sought clarification from us as to whether a

decision on the remand issue was necessary. We advised the remand hearing

was not mandatory, unless plaintiff's counsel indicated in writing he required a

determination in order to further litigate the matter. On December 7, 2015,

plaintiff's counsel sent a letter to the OAL waiving the hearing, stating the matter

was moot.

On January 20, 2017, plaintiff filed a complaint in the Law Division

against the MCPO, Prosecutor Andrew Carey, Kuberiet, and Abromaitis

(collectively, the MCPO defendants); the Busch defendants; the SBOE

defendants; Rafferty; the Borough of Sayreville; and County of Middlesex. On

February 16, 2017, plaintiff filed a first amended complaint alleging the

following counts: violations of the New Jersey Civil Rights Act, N.J.S.A. 10:6-

1 to -2 (NJCRA) (count one); violation of the Juvenile Justice Code, N.J.S.A.

2A:4A-20 to -92 (count two); malicious prosecution (count three); abuse of

process (count four); negligent supervision/respondent superior (count five);

defamation-libel (count six); defamation-slander (count seven); invasion of

privacy-false light (count eight); negligence (count nine); intentional negligent

infliction of emotional distress (IIED) (count ten); negligent infliction of

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emotional distress (count eleven); civil conspiracy (count twelve); punitive

damages (count thirteen); and invasion of privacy (counts fourteen and fifteen) .

On March 28, 2017, the Middlesex Vicinage Assignment Judge sua sponte

transferred venue to Monmouth Vicinage pursuant to Rule 4:3-3(a), in order to

"avoid all appearance of any perceived conflict." Plaintiff filed a motion for

reconsideration, which the Assignment Judge denied following oral argument

on April 28, 2017. The judge reasoned the prosecutors' regular appearances

before the judges in Middlesex Vicinage, the interests of justice, and to avoid

any appearance of impropriety or perceived conflict necessitated the transfer.

In May 2017, the Busch defendants, MCPO defendants, SBOE

defendants, Borough of Sayreville, and Middlesex County filed motions to

dismiss the first amended complaint pursuant to Rule 4:6-2(e) for failure to state

a claim upon which relief can be granted. On October 5, 2017, the court entered

an order dismissing several counts by consent against each defendant and

adjudicating dismissal of claims against the Borough and the County; we address

the dismissals related to the parties involved in this appeal. As to the SBOE and

MCPO defendants, the court dismissed the NJCRA equal protection claim in

count one without prejudice, as well as counts six and seven, and dismissed the

NJCRA substantive due process claim in counts one, four, eight, ten, twelve,

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thirteen, and fifteen with prejudice. As to the Busch defendants, the court

dismissed counts six and seven without prejudice and dismissed counts one, two,

four, five, and eight through thirteen with prejudice.

The court also granted plaintiff leave to file a second amended complaint

"to allege sufficient facts . . . to pursue civil rights claims against the [SBOE]

. . . [and] the [MCPO] defendants on the basis of violation of equal protection

rights" and to further address the counts which were dismissed without

prejudice, including those against the Busch defendants. Plaintiff filed a motion

for reconsideration, which the court denied on February 23, 2018, following a

two-day oral argument. Contrary to plaintiff's arguments, the court concluded

it made adequate findings in support of its October 2017 order and plaintiff's

disagreement with the decision was not grounds for reconsideration. The court

granted plaintiff leave to file a second amended complaint.

On April 2, 2018, plaintiff filed a second amended complaint, restating

the original fifteen counts 2, and adding eight additional counts including a cause

of action under NJCRA pled with greater specificity against the SBOE and

MCPO defendants (count sixteen), and additional claims alleging violations of

2

The second amended complaint named count three only to indicate it had been

dismissed against all defendants by consent.

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the Federal Civil Rights Act (FCRA), 42 U.S.C. § 1983 against the SBOE,

MCPO, and Busch defendants (counts seventeen through twenty-two) and

Rafferty (count twenty-three). The MCPO defendants, Busch defendants, SBOE

defendants, Borough, and County moved to dismiss the second amended

complaint pursuant to Rule 4:6-2(e). The court made detailed oral findings and

entered an order granting defendants' motions dismissing the second amended

complaint with prejudice on July 23, 2018.

In October 2018, Rafferty moved to dismiss the claims against her set

forth in the second amended complaint pursuant to Rule 4:6-2(e). On March 15,

2019, the court made detailed oral findings and granted the motion, dismissing

the claims against Rafferty with prejudice.

Plaintiff raises the following points on appeal:

I. THE TRIAL COURT ERRED BY DISMISSING

VIOLATIONS OF THE [NJCRA] AS TO

SUBSTANTIVE DUE PROCESS.

A. The CRA Generally.

B. The SBOE Defendants And Busch

Defendants Acted Under Color of Law

C. The Trial Court Erred By Applying Waiver

D. Exhaustion Of Administrative Remedies Is

No Defense

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E. The Litigation Privilege Is No Defense

F. Kuberiet And Carey Aren't Entitled To

Absolute Immunity As They Were Acting In

Their Administrative Capacities When They

Violated Plaintiff's Constitutional Rights

G. Qualified Immunity Can't Be Decided Yet

H. Qualified Immunity Doesn't Bar

Declaratory And Injunctive Relief [Not Raised

Below As To All Defendants]

II. THE TRIAL COURT ERRED BY DISMISSING

VIOLATIONS OF THE [NJCRA] AS TO EQUAL

PROTECTION

III. THE TRIAL COURT ERRED BY DISMISSING

VIOLATIONS OF THE [FCRA] (PRIVACY,

PROCEDURAL AND SUBSTANTIVE DUE

PROCESS) FOR IMPROPERLY LABELING

PLAINTIFF A SEX OFFENDER WITH PREJUDICE

IV. THE TRIAL COURT ERRED BY DISMISSING

VIOLATIONS OF THE [FCRA] (PROCEDURAL

DUE PROCESS) FOR IMPROPERLY DISCLOSING

JUVENILE RECORDS

V. THE TRIAL COURT ERRED BY DISMISSING

RAFFERTY ALLEGING VIOLATIONS OF THE

[FCRA] (PRIVACY, PROCEDURAL AND

SUBSTANTIVE DUE PROCESS) FOR

IMPROPERLY USING PAST JUVENILE

ADJUDICATIONS OF PLAINTIFF TO

DISCRIMINATE AGAINST PLAINTIFF

VI. THE TRIAL COURT ERRED BY DISMISSING

RAFFERTY ALLEGING VIOLATIONS OF THE

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[FCRA] (PRIVACY, PROCEDURAL AND

SUBSTANTIVE DUE PROCESS) FOR

IMPROPERLY USING PAST JUVENILE

ADJUDICATIONS OF PLAINTIFF TO

DISCRIMINATE AGAINST PLAINTIFF

VII. THE TRIAL COURT ERRED BY DISMISSING

CIVIL CONSPIRACY

VIII. THE TRIAL COURT ERRED BY DISMISSING

DEFAMATION (LIBEL AND SLANDER) AGAINST

KUBERIET AND CAREY

A. Defamation Generally

B. Plaintiff Was a Private Person And

Plaintiff [Should] Be Afforded The Opportunity

To Conduct Discovery To Prove Those Claims

C. The Defamation Claims Were Sufficiently

Pled Against Kuberiet And Carey

IX. THE TRIAL COURT ERRED BY

TRANSFERRING THE CASE FROM MIDDLESEX

COUNTY TO MONMOUTH COUNTY

I.

"A motion to dismiss under Rule 4:6-2(e) requires application of 'the test

for determining the adequacy of a pleading: whether a cause of action is

"suggested" by the facts.'" Gonzalez v. State Apportionment Comm'n, 428 N.J.

Super. 333, 349 (App. Div. 2012) (quoting Printing Mart-Morristown v. Sharp

Elecs. Corp., 116 N.J. 739, 746 (1989)). "A complaint should be dismissed for

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failure to state a claim pursuant to Rule 4:6-2(e) only if 'the factual allegations

are palpably insufficient to support a claim upon which relief can be granted.'"

Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010) (quoting Rieder

v. State Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)).

"In evaluating motions to dismiss, courts consider 'allegations in the

complaint, exhibits attached to the complaint, matters of public record, and

documents that form the basis of a claim.'" Banco Popular N. Am. v. Gandi,

184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n. 3

(3d Cir. 2004)). The inquiry is limited to examining the legal sufficiency of the

facts alleged only on the face of the complaint; neither the trial nor appellate

court is concerned with the weight, worth, nature, or extent of the evidence.

Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

A "with-prejudice" dismissal of a plaintiff's complaint will be reversed if

it is "premature, overbroad, . . . [or] based on a mistaken application of the law."

Flinn v. Amboy Nat'l Bank, 436 N.J. Super. 274, 287 (App. Div. 2014). When

we review a trial court's ruling dismissing claims against a party under Rule 4:6-

2(e), we apply a plenary standard of review which owes no deference to the trial

court's conclusions. Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 33

(App. Div. 2015).

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"Motions for reconsideration are granted only under very narrow

circumstances . . . ." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462

(App. Div. 2002). Reconsideration should be used only for those cases where

"either (1) the [c]ourt has expressed its decision based upon a palpably incorrect

or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or

failed to appreciate the significance of probative, competent evidence." Ibid.

(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). We

review the trial court's denial of reconsideration for an abuse of discretion.

Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).

II.

In points I and II, plaintiff contends that the trial court erred by dismissing

his substantive due process and equal protection claims brought pursuant to the

NJCRA.

Regarding the substantive due process claims, plaintiff argues: (1) the

SBOE and Busch defendants acted under color of state law; (2) waiver did not

bar his claim; (3) the exhaustion of administrative remedies was not a defense

to his claim; (4) the litigation privilege did not apply; (5) Kuberiet and Carey

were not entitled to prosecutorial immunity; and (6) for the first time on appeal

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asserts qualified immunity does not bar declaratory and injunctive relief as to

all defendants. We address these arguments in turn.

A plaintiff asserting a claim pursuant to the NJCRA, must allege: (1) the

constitution or law of this state conferred on him a substantive right; (2)

defendants deprived him of that right or interfered with that right by threats,

intimidation or coercion; and (3) the defendants were acting under color of law

when they did so. Tumpson v. Farina, 218 N.J. 450, 473 (2014) (quoting

N.J.S.A. 10:6-2(c)).

At the outset, we note plaintiff's brief does not identify any substantive

rights violated by defendants. Generally, "[t]he failure to adequately brief the

issues requires it to be dismissed as waived." Weiss v. Cedar Park Cemetery,

240 N.J. Super. 86, 102 (App. Div. 1990). Notwithstanding, we presume

plaintiff's substantive due process claims are based on the fact his sus pension

deprived him of the opportunity to play football. However, participation in

extracurricular activities, such as athletics, is a privilege, not a protected

interest. See Todd v. Rush Cnty. Sch., 133 F.3d 984, 986 (7th Cir.) (observing

that extracurricular activities, like athletics, are a privilege), cert. denied, 525

U.S. 824 (1998).

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Furthermore, to the extent plaintiff's claims are based on the argument he

was deprived of a timely disciplinary hearing and his juvenile records were

disclosed without prior court approval in violation of N.J.S.A. 2A:4A-60, which

states the records of "juveniles charged as a delinquent . . . shall be strictly

safeguarded from public inspection[,]" such claims are procedural in nature and

not cognizable under the NJCRA. See Coles v. Carlini, 162 F. Supp. 3d 380,

402 (D.N.J. 2015) (finding NJCRA does not provide for vindication of

procedural due process rights, only substantive rights); Tumpson, 218 N.J. at

478 (to recover under NJCRA, plaintiffs must show the right allegedly violated

was substantive, not procedural).

We also reject plaintiff's argument a NJCRA claim was viable against the

SBOE and Busch defendants because they were acting under color of law.

Private actions under the NJCRA for violation of an individual's substantive

rights only lie against persons acting under "color of law," N.J.S.A. 10:6-2(c),

meaning the exercise of power "possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law."

Polk Cnty. v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v.

Classic, 313 U.S. 299, 326 (1941)). "A private actor may be deemed to have

acted under color of state law only where his or her conduct is 'fairly attributable

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to the state.'" Poling v. K. Hovnanian Enters., 99 F. Supp. 2d 502, 513 (D.N.J.

2000) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). The

"relevant question" is not simply whether a private person or group is serving a

"public function," but whether the function performed has been "traditionally

the exclusive prerogative of the State." Rendell-Baker, 457 U.S. at 842

(emphasis omitted) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353

(1974)). Thus, the fact that "a private entity performs a function which serves

the public does not make its acts state action." Ibid.

Concluding the Busch defendants did not act under color of law, the trial

court stated:

Set forth in the complaint, the Busch defendants were

contracted to provide legal services to the [SBOE],

which is a private function not performed by the State.

The actions alleged by plaintiff were conducted

by the Busch defendants during the course of their

representation of the [SBOE]. And no factual basis has

been presented to attribute to the Busch defendants'

actions which were performed by the State.

We discern no reversible error. We have stated: "It is clear that an

attorney acts as an agent for his client," Hewitt v. Allen Canning Co., 321 N.J.

Super. 178, 184 (App. Div. 1999), but a "lawyer, although required to work for

the client's benefit, has considerable independence in doing so." Cohen v.

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23

Southbridge Park, Inc., 369 N.J. Super. 156, 161 (App. Div. 2004) (quoting

Restatement (Third) of The Law Governing Lawyers, Introductory Note to

Chapter 2, The Client–Lawyer Relationship (2000)). Thus, "attorneys are also

independent contractors as well as agents." Ibid. (quoting McCarthy v.

Recordex Serv., Inc., 80 F.3d 842, 853 (3d Cir.), cert. denied, 519 U.S. 825

(1996)). Therefore, the Busch defendants were neither state actors nor acting

"under color of law" because they represented a public entity. Polk Cnty., 454

U.S. at 318.

We also reject plaintiff's argument the trial court's finding he waived his

claims was error. Waiver is the voluntary and intentional relinquishment of a

known right. Knorr v. Smeal, 178 N.J. 169, 177 (2003). In Knorr, the New

Jersey Supreme Court explained:

An effective waiver requires a party to have full

knowledge of his legal rights and intent to surrender

those rights. The intent to waive need not be stated

expressly, provided the circumstances clearly show that

the party knew of the right and then abandoned it, either

by design or indifference. The party waiving a known

right must do so clearly, unequivocally, and decisively.

[Ibid. (citations omitted).]

In holding plaintiff waived his substantive due process claim, the court

stated:

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24

Plaintiff . . . fails to account for the fact that he

was afforded a hearing and had a full opportunity to

litigate the issues raised against the [SBOE] defendants

regarding his school discipline. N.J.S.A. 18A:37-5

grants the [SBOE] the authority to impose a long-term

suspension or expulsion.

There is no dispute the [SBOE] followed the

processes enumerated in N.J.A.C. 6A:16-7.3(a), et seq,

and afforded plaintiff a formal hearing on the proposed

discipline.

However, the proceedings were originally stayed

at plaintiff's request pending the outcome of the

juvenile proceedings . . . .

The Appellate Division later remanded the matter

back to the [t]rial [c]ourt . . . [and o]n remand, plaintiff

requested the [t]rial [c]ourt not issue a ruling on the

good cause standard on the basis that the issue was

moot because plaintiff no longer intended to return to

. . . [SHS], and therefore no longer desired to have a

disciplinary hearing to challenge his suspension.

The [SBOE] and the [MCPO] defendants took

issue with the contention, and sought a ruling on the

issue of whether plaintiff waived his right to a

disciplinary hearing.

When plaintiff failed to inform the [c]ourt in

writing he intended to litigate the matter further, as was

ordered by the Appellate Division, plaintiff effectively

waived his right to continue to litigate.

Plaintiff further withdrew his petition before the

Commissioner wherein he sought dismissal of the

disciplinary charges, and demanded reinstatement at

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25

[SHS], thus failing to exhaust his statutory

administrative remedies prior to filing this case.

Therefore, as plaintiff was clearly provided the

opportunity for a hearing, and informed that he had a

right to continue with the litigation, and chose not to

proceed, plaintiff has not only failed to allege any

viable claim, but cannot now attempt to re-litigate a

challenge to a suspension claiming the [SBOE] violated

his rights to a thorough and efficient system of

education.

....

. . . [T]he precise issue regarding disclosure of the

records and whether good cause existed for . . . the

[SBOE] defendants to possess the records, was

previously remanded by the Appellate Division for a

determination by the [t]rial [c]ourt in the plaintiff's

juvenile case.

Plaintiff informed the [c]ourt the issue was moot,

and he had no intent further of litigating the matter.

Additionally, plaintiff fails to realize that when

an allegation as serious as sexual misconduct in a

school locker room arises and criminal charges are

brought, the [MCPO] defendants are entitled to all of

plaintiff's disciplinary records.

The trial court did not err. A Board of Education has the authority to

suspend or expel a pupil. N.J.S.A. 18A:37-5. In each instance of a long-term

suspension, the Board must hold a hearing on the proposed discipline and render

a decision. N.J.A.C. 6A:16-7.3(a). The decision of the Board may then be

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26

appealed to the Commissioner of Education. N.J.A.C. 6A:16-7.3(b); N.J.S.A.

18A:37-2.4. The Commissioner makes the final agency decision, which may

then be subject to appellate review. N.J.S.A. 18A:6-9.1.

It is undisputed plaintiff was provided the opportunity to challenge his

suspension at a disciplinary hearing pursuant to N.J.A.C. 6A:16-7.3(a). At

plaintiff's request, the hearing was deferred until after the juvenile delinquency

proceedings concluded. Thereafter, plaintiff's counsel advised the trial court the

disciplinary matter was moot because plaintiff no longer intended to return to

SHS or challenge his suspension. Plaintiff's actions constituted an unequivocal

waiver.

Plaintiff contends the court's finding he failed to exhaust his

administrative remedies was erroneous because "[a]dministrative courts [do] not

have jurisdiction to hear the issue regarding access to, and/or disclosure of . . .

juvenile records of law enforcement." He also argues "[a]dministrative [c]ourts

do NOT have jurisdiction to award attorney fees or monetary damages and

therefore it was impossible for [p]laintiff to exhaust his administrative remedies

regarding his civil cause of action." Furthermore, he argues "[b]y the time the

Appellate Division rendered its decision, the football season was over, making

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27

any attempt of seeking redress for returning to play football through the

administrative courts futile."

"[T]he exhaustion of remedies requirement is a rule of practice designed

to allow administrative bodies to perform their statutory functions in an orderly

manner without preliminary interference from the courts." Brunetti v. Borough

of New Milford, 68 N.J. 576, 588 (1975). "Exhaustion of administrative

remedies before resort to the courts is a firmly embedded judicial principle. This

principle requires exhausting available procedures, that is, 'pursuing them to

their appropriate conclusion and, correlatively . . . awaiting their final outcome

before seeking judicial intervention.'" Garrow v. Elizabeth Gen. Hosp. &

Dispensary, 79 N.J. 549, 558-59 (1979) (second alteration in original) (citations

omitted) (quoting Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 767

(1947)). Our Supreme Court has explained

the doctrine of exhaustion of administrative remedies

serves three primary goals: (1) the rule ensures that

claims will be heard, as a preliminary matter, by a body

possessing expertise in the area; (2) administrative

exhaustion allows the parties to create a factual record

necessary for meaningful appellate review; and (3) the

agency decision may satisfy the parties and thus obviate

resort to the courts.

[Atl. City v. Laezza, 80 N.J. 255, 265 (1979).]

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28

However, "[t]he exhaustion doctrine is not an absolute." Garrow, 79 N.J.

at 561. "Exceptions exist when only a question of law need be resolved; when

the administrative remedies would be futile; when irreparable harm would

result; when jurisdiction of the agency is doubtful; or when an overriding public

interest calls for a prompt judicial decision." Ibid. (citations omitted).

The Commissioner of Education has "plenary" authority over education-

related matters, Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352

N.J. Super. 420, 424 (App. Div. 2002), and "fundamental and indispensable

jurisdiction over all disputes and controversies arising under the school laws ,"

Hinfey v. Matawan Reg'l Bd. of Educ., 77 N.J. 514, 525 (1978). N.J.S.A. 18A:6-

9 states: "The commissioner shall have jurisdiction to hear and determine,

without cost to the parties, all controversies and disputes arising under the

school laws, excepting those governing higher education, or under the rules of

the State board or of the commissioner." The Commissioner's jurisdiction

includes the power to resolve issues implicating constitutional claims. Desilets

v. Clearview Reg'l Bd. of Educ., 137 N.J. 585, 595-96 (1994). "[W]ith respect

to school-law controversies, particularly where a local board's decision is

challenged, it is the exhaustion of remedies doctrine which requires first resort

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29

to the administrative process." Theodore v. Dover Bd. of Educ., 183 N.J. Super.

407, 414 (App. Div. 1982).

Plaintiff was required to exhaust his administrative remedies prior to

instituting the Law Division action. He commenced, but then withdrew from

the administrative dispute resolution process, advising the issue was moot. As

the trial court correctly determined, plaintiff's actions prevented a proper

resolution of his challenge to the disciplinary action. We find no error in the

decision to dismiss his complaint accordingly.

Plaintiff contends the court erred by finding the SBOE defendants were

protected under the litigation privilege. He argues the privilege did not apply

because "[t]he SBOE, Labbe[,] and Macagnone were[ not] litigants or other

participants authorized by law at [p]laintiff's juvenile delinquency trial." He

contends he "has a procedural due process right to not hav[e] the records

disclosed without first being heard by a court of law or at a minimum, seeking

permission from his parents."

The litigation privilege generally protects attorneys and litigants "from

civil liability arising from words . . . uttered in the course of judicial

proceedings." Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 579

(2006). See also Ruberton v. Gabage, 280 N.J. Super. 125, 132 (App. Div. 1995)

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30

("A statement made in the course of judicial, administrative or legislative

proceedings is absolutely privileged and wholly immune from liability."). The

privilege shields "any communication: (1) made in judicial or quasi-judicial

proceedings; (2) by litigants or other participants authorized by law; (3) to

achieve the objects of the litigation; and (4) that have some connection or logical

relation to the action." Hawkins v. Harris, 141 N.J. 207, 216 (1995) (quoting

Silberg v. Anderson, 50 Cal. 3d 205, 369 (1990)).

The privilege is not confined to the courtroom and "extends to all

statements or communications in connection with the judicial proceeding."

Ruberton, 280 N.J. Super. at 133. It "extends not only to testimony and

documents admitted in evidence but also to documents utilized in the

preparation of judicial proceedings." Durand Equip. Co. v. Superior Carbon

Prods., Inc., 248 N.J. Super. 581, 584 (App. Div. 1991). See also DeVivo v.

Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988) (litigation privilege "may be

extended to statements made in the course of judicial proceedings even if the

words are written or spoken maliciously, without any justification or excuse,

and from personal ill will or anger against the party defamed"). Additionally,

pretrial communications by parties and witnesses are protected "to promote the

development and free exchange of information and to foster judicial and extra -

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31

judicial resolution of disputes." Hawkins, 141 N.J. at 218 (quoting Gen. Elec.

Co. v. Sargent & Lundy, 916 F.2d 1119, 1129 (6th Cir. 1990)). "The only

limitation which New Jersey places upon the privilege is that the statements at

issue 'have some relation to the nature of the proceedings.'" Rabinowitz v.

Wahrenberger, 406 N.J. Super. 126, 134 (App. Div. 2009) (quoting Hawkins,

141 N.J. at 215).

Plaintiff's arguments are unpersuasive. It is evident, as the trial court

concluded, the statements made by the SBOE defendants, and the evidence

disclosed by them, was in anticipation of, and preparation for, plaintiff's

disciplinary hearing, which was a quasi-judicial proceeding. See Pa. R.R. Co.

v. N.J. State Aviation Comm'n, 2 N.J. 64, 70 (1949) ("Where the administrative

tribunal is under a duty to consider evidence and apply the law to the facts as

found, thus requiring the exercise of a discretion or judgment judicial in nature

on evidentiary facts, the function is quasi judicial and not merely ministerial.").

Therefore, regardless of the reasons for disclosures, the litigation privilege

applied.

Plaintiff contends Kuberiet and Carey were not entitled to absolute

prosecutorial immunity. He argues their "conduct of disclosing [p]laintiff's

juvenile records to other defendants, along with labeling [p]laintiff a sex

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32

offender in a post adjudication press release, do not relate to an advocate's

preparation for the initiation of a prosecution or for a judicial proceeding and

therefore, are[ not] entitled to absolute immunity."

Prosecutors enjoy absolute immunity for claims brought under statutory

and common law alleging the deprivation of rights. Imbler v. Pachtman, 424

U.S. 409, 427 (1976). Absolute prosecutorial immunity is granted out of

"concern that harassment by unfounded litigation would cause a deflection of

the prosecutor's energies from his public duties, and the possibility that he would

shade his decisions instead of exercising the independence of judgment required

by his public trust." Id. at 423. Although absolute immunity "does leave the

genuinely wronged defendant without civil redress against a prosecutor whose

malicious or dishonest action deprives him of liberty," the broader public

interest promoting a prosecutor's "vigorous and fearless performance" of the

office's duties must prevail. Id. at 427. However, a prosecutor's administrative

duties and investigatory functions that do not relate to the preparation for the

initiation of a prosecution or for judicial proceedings are not entitled to absolute

immunity. Burns v. Reed, 500 U.S. 478, 494-96 (1991).

To determine whether particular actions of government officials are

entitled to absolute immunity, courts apply a "functional approach," see id. at

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33

486, which considers "the nature of the function performed, not the identity of

the actor who performed it," Forrester v. White, 484 U.S. 219, 229 (1988). See

also Michaels v. New Jersey, 50 F. Supp. 2d 353, 359 (D.N.J. 1999). When a

prosecutor functions as an administrator rather than an officer of the court, the

prosecutor is entitled only to qualified immunity. Buckley v. Fitzsimmons, 509

U.S. 259, 273 (1993). The official seeking immunity has the burden to show

immunity is justified for the function in question. Burns, 500 U.S. at 486.

The trial court stated:

Here, while plaintiff alleges the [MCPO]

defendants violated his constitutional rights for their

alleged wrongful acts in the investigation of him, such

investigations were clearly done in preparation for the

prosecution of plaintiff or anyone else. And plaintiff

was, in fact, subsequently charged.

However, to the extent that the complaint centers

on the [MCPO] defendants['] individual activity that

cannot be argued to be in furtherance or preparation of

plaintiff's prosecution[, t]he doctrine of qualified

immunity must be examined to determine [i]f the

defendants are shielded from liability.

It is evident the trial court found this aspect of plaintiff's claims was barred

by the litigation privilege, not absolute prosecutorial immunity. Plaintiff's

argument to the contrary lacks merit.

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34

Plaintiff contends the court erred by finding Kuberiet and Carey were

entitled to qualified immunity. He argues "[a] full analysis of whether qualified

immunity applies to [p]laintiff's claims against [d]efendants is premature

because there are unresolved questions of fact relevant to the analysis, including

whether defendants knowingly violated the law, as suggested in the second

[amended] complaint." Plaintiff also argues "[q]ualified immunity does[ not]

bar actions for injunctive relief. Even where the lower [court] found qualified

immunity for the respective defendants, [he] is still entitled to declaratory and

injunctive relief under the FCRA and [NJ]CRA."

Qualified immunity is an affirmative defense that may be raised where

claims are brought against a government official pursuant to 42 U.S.C. § 1983

and the NJCRA. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Gormley v.

Wood-El, 218 N.J. 72, 97-98, 113-15 (2014). Qualified immunity shields

government officials "from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known." Harlow, 457 U.S. at 818. "The

protection of qualified immunity applies regardless of whether the governme nt

official's error is 'a mistake of law, a mistake of fact, or a mistake based on

mixed questions of law and fact.'" Pearson v. Callahan, 555 U.S. 223, 231

A-3654-18

35

(2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,

dissenting)). "Whether an official is covered by qualified immunity is a matter

of law to be decided by a court." Gormley, 218 N.J. at 113.

Qualified immunity, however, is not available if the unlawfulness of the

official's act is objectively apparent given the pre-existing law at the time of the

alleged deprivation of rights. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

In other words, "whether an official protected by qualified immunity may be

held personally liable for an allegedly unlawful official action gener ally turns

on the 'objective legal reasonableness' of the action, assessed in light of the legal

rules that were 'clearly established' at the time it was taken." Id. at 639 (quoting

Harlow, 457 U.S. at 819 and 818).

"[T]he 'driving force' behind creation of the qualified immunity doctrine

was a desire to ensure that "'insubstantial claims' against government officials

[will] be resolved prior to discovery."" Pearson, 555 U.S. at 231 (quoting

Anderson, 483 U.S. at 640 n.2). "Reliance on the objective reasonableness of

an official's conduct, as measured by reference to clearly established law, should

. . . permit the resolution of many insubstantial claims on summary judgment."

Harlow, 457 U.S. at 818.

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36

A right is clearly established when "'[t]he contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is

doing violates that right.'" Gormley, 218 N.J. at 113 (first alteration in original)

(quoting Anderson, 483 U.S. at 640). "If the law was clearly established, the

immunity defense ordinarily should fail, since a reasonably competent public

official should know the law governing his conduct." Harlow, 457 U.S. at 818-

19.

As we noted, plaintiff's complaint failed to identify any substantive right

violated in support of his NJCRA and constitutional claims. Thus, the trial court

correctly determined defendants were entitled to qualified immunity. We

decline to consider plaintiff's argument qualified immunity did not bar his ability

to seek injunctive relief because his complaint did not seek this relief and he did

not raise this argument before the trial court. Therefore we do not consider it

on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

In point II of his brief, plaintiff contends the trial court erred by dismissing

his NJCRA equal protection claim. He argues "[t]he SBOE has a history and

tradition of treating African American students differently from non -African

American students" and he was treated differently than a white student (John

Doe 1). Plaintiff asserts:

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37

The MCPO defendants never disclosed to the SBOE or

the Busch defendants the confidential records of John

Doe 1 . . . . The SBOE defendants did[ not] drag John

Doe 1 through the [c]ourt system in order to have his

records used at a long term suspension hearing in

violation of his due process rights.

The fundamental guarantee to equal protection of the laws embraced by

Article I, Paragraph 1 of the New Jersey Constitution does not require all persons

be treated alike. In re Contest of Nov. 8, 2011, 210 N.J. 29, 48 (2012); Lewis

v. Harris, 188 N.J. 415, 442 (2006). Rather, "[t]o establish a violation of the

equal protection clause, a plaintiff must show that the allegedly offensive

categorization invidiously discriminates against the disfavored group." In re

Contest of Nov. 8, 2011, 210 N.J. at 48 (quoting Price v. Cohen, 715 F.2d 87,

91 (3d Cir. 1983)). The test involves weighing "the nature of the affected right,

the extent to which the governmental restriction intrudes upon it, and the public

need for the restriction." Lewis, 188 N.J. at 468 (quoting Sojourner A. v. N.J.

Dep't of Hum. Servs., 177 N.J. 318, 333 (2003)). "The test is a flexible one,

measuring the importance of the right against the need for the governmental

restriction." Id. at 443. "Under that approach, each claim is examined 'on a

continuum that reflects the nature of the burdened right and the importance of

the governmental restriction.'" Ibid. (quoting Sojourner A., 177 N.J. at 333).

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38

In dismissing plaintiff's equal protection claim against the SBOE

defendants, the trial court stated:

Here, plaintiff's equal protection claims against

the [SBOE] defendants must fail as a matter of law.

Applying the analytical framework established in

Greenberg[ v. Kimmelman, 99 N.J. 552 (1985)], the

[c]ourt finds no equal protection violation because

plaintiff has not suffered a loss of [a] fundamental right.

....

Plaintiff fails to make a showing the [SBOE]

defendants unevenly applied Federal or State laws,

rather the gravamen in the claim for equal protection

violation centers on the difference in disciplinary

treatment he received in comparison to another student

involved in another matter.

....

. . . Plaintiff continues to address the difference

in how he was treated in comparison to that of John Doe

1, yet the [c]ourt has previously addressed this issue,

maintaining no Federal or State Constitutional rights

were infringed upon in this matter.

Regarding the MCPO defendants, the court stated:

Prosecutors are subject to varying levels of official

immunity. Absolute immunity attaches to all actions

performed in a quasi-judicial role, Imbler, [424 U.S. at

430].

This includes activity taken while in court such

as the presentation of evidence or legal argument as

well as selected out of court behavior intimately

A-3654-18

39

associated with the judicial phases of litigation,

Kulwicki [v. Dawson, 969 F.2d 1454, 1463 (3d Cir.

1992).]

Plaintiff's claims against Kuberiet and Carey's

conduct center on their prosecutorial discretion. As

stated in Imbler absolute immunity attaches for all

actions taken in a quasi-judicial role. Plaintiff attempts

to argue that defendants acted arbitrarily and

maliciously but offers no proofs other than the

allegations made in this complaint.

Again, plaintiff refers to the [p]rosecutor's

actions in handling the John Doe matter[,] but the

[c]ourt has already determined he failed to establish

that both were similarly situated individuals who

received unequal treatment of governing law. There are

also additional facts and differences between the two

cases plaintiff fails to address.

To reiterate, school disciplinary actions fail to

serve as a basis for equal protection claims. The

complaint fails to establish the [MCPO] defendants

were not acting in their official capacity during the

investigation.

We affirm substantially for the reasons expressed by the trial court. We

add the following comments. Plaintiff's equal protection claims failed because

his complaint did not identify the deprivation or violation of any fundamental

right. Further, he failed to establish the law was unevenly applied to him in

comparison to another similarly situated individual. See e.g., Startzell v. City

of Phila., 533 F.3d 183, 203 (3d Cir. 2008) ("Persons are similarly situated under

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40

the Equal Protection Clause when they are alike 'in all relevant aspects.'")

(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). See also In re T.J.S., 419

N.J. Super. 46, 58-59 (App. Div. 2011) ("Indeed, the constitutional guarantee

'does not demand that things that are different in fact be treated the same in law

. . . .'") (quoting State v. Chun, 194 N.J. 54, 103 (2008), aff'd, 212 N.J. 334

(2012)).

Plaintiff argues John Doe 1 received less severe discipline; however, John

Doe 1 was involved in a wholly unrelated incident described as an assault during

which John Doe 1 punched a fellow student more than twenty times. Plaintiff's

complaint does not allege John Doe 1 had a disciplinary hearing while plaintiff

was denied one on the basis of race. Indeed, plaintiff fails to identify what

disciplinary action was taken against John Doe 1 or how it differed from the

discipline he received.

Plaintiff's claims against the MCPO defendants fail for similar reasons.

From the Prosecutor's perspective, the incident involving John Doe 1 was a fist

fight between two high school students, which was wholly different from

plaintiff's alleged conduct. No reasonable inference can be drawn that plaintiff's

race motivated the MCPO defendants to disclose his information during a quasi-

A-3654-18

41

judicial proceeding or the related investigation because plaintiff and John Doe

1 were not similarly situated "in all relevant respects."

III.

In points III, IV, and V of his brief, plaintiff argues the trial court erred in

dismissing his FCRA claims against Kuberiet, Carey, and Rafferty.

A.

Plaintiff contends the trial court erred by dismissing his section 1983

claims against Kuberiet and Carey because these defendants labeled him a sex

offender in a news release, violating his "privacy, procedural and substantive

due process rights under the United States Constitution and rights under the

Code of Juvenile Justice." Plaintiff argues he "pled sufficient facts to suggest

a[n] FCRA cause of action for his being labeled a sex offender."

The United States Supreme Court explained the Fourteenth Amendment

Due Process Clause as follows:

By requiring the government to follow appropriate

procedures when its agents decide to "deprive any

person of life, liberty, or property," the Due Process

Clause promotes fairness in such decisions. And by

barring certain government actions regardless of the

fairness of the procedures used to implement them, . . .

it serves to prevent governmental power from being

"used for purposes of oppression[]" . . . .

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42

[Daniels v. Williams, 474 U.S. 327, 331 (1986)

(quoting Den Ex Dem. Murray v. Hoboken Land &

Improv. Co., 59 U.S. 272, 277 (1856)).]

"[T]he substantive component of the Due Process Clause can only be violated

by governmental employees when their conduct amounts to an abuse of official

power that 'shocks the conscience.'" Fagan v. City of Vineland, 22 F.3d 1296,

1303 (3d Cir. 1994) (citations omitted).

"Generally speaking, [42 U.S.C.] section 1983 provides a cause of action

in state or federal courts to redress federal constitutional and statutory violations

by state officials." Bernstein v. State, 411 N.J. Super. 316, 335-36 (App. Div.

2010) (quoting Gen. Motors Corp. v. City of Linden, 143 N.J. 336, 341 (1996),

cert. denied, 519 U.S. 816). To prevail on a section 1983 claim, a plaintiff must

establish the following elements: (1) a violation of rights, privileges, or

immunities secured by the Constitution or laws of the United States; and (2) the

violation complained of was committed by a person acting under color of state

law. Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011).

Furthermore, "a plaintiff who wishes to sustain a [section] 1983 claim based

upon a violation of procedural due process must, at a minimum, prove

recklessness or 'gross negligence' and in some instance[s] may be required to

show a 'deliberate decision to deprive' the plaintiff of due process." Jordan v.

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43

Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994) (quoting

Daniels, 474 U.S. at 333-34).

The trial court explained its reasons for dismissing plaintiff's due proces s

claims as follows:

Plaintiff's basis for the claim is that the August

2015 press release labeled him as a sex offender. A

review of the press release shows that plaintiff is not

labeled as a sex offender as no individual defendants

are named . . . .

Plaintiff asserts a violation of procedural

substantive due process rights relying on O'Neill [v.

Kerrigan, No. 11-3437, 2013 U.S. Dist. LEXIS 24658

(E.D. Pa. Feb. 22, 2013)]. The [c]ourt notes it's an

unpublished opinion. Plaintiff did not attach a copy in

violation of [Rule] 1:36.

Nevertheless, the O'Neill decision discusses

whether there's a privacy right associated with

disclosure of juvenile records and finds there is a lack

of precedent to support a finding of any such right.

Plaintiff also relies on Kirby [v. Siegelman, 195

F.3d 1285, 1292 (11th Cir. 1999), and Neal v. Shimoda,

131 F.3d 818, 829 (9th Cir. 1997),] in arguing the

[p]rosecutors acted maliciously. The present matter is

distinguishable from both Kirby and . . . Neal as both

dealt with the classification of an inmate as [a] sex

offender[].

Specifically, in . . . Neal due process violations

were found where the inmates were labeled sex

offenders prior to being convicted of the offense. It

should be further noted the defendants in Neal were

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44

ultimately entitled to qualified immunity which this

[c]ourt agrees is applicable to the [MCPO] defendants.

As previously stated[,] there's no specific

mention of plaintiff's name or specific accusation made

against him of being a sex offender. There's no clearly

established privacy right violated by disclosure of

juvenile records and the [MCPO] defendants are

entitled to qualified immunity.

The trial court's reasoning is sound. Plaintiff's second amended complaint

alleged the news release stigmatized and portrayed him as a "sexual pariah,"

thereby causing him "specific harm by defaming him." However, damage to

one's reputation does not give rise to a valid claim under section 1983. See Paul

v. Davis, 424 U.S. 693, 701 (1976) (holding reputation alone is not an interest

protected by Due Process Clause). Without demonstrating the deprivation of a

federally protected interest, plaintiff could not assert a cognizable due process

claim under section 1983. See Kelly v. Borough of Sayreville, 107 F.3d 1073,

1078 (3d Cir. 1997) ("[W]e must be careful not to equate a state defamation

claim with a cause of action under section 1983 predicated on the Fourteenth

Amendment."); Robb v. City of Phila., 733 F.2d 286, 294 (3d Cir. 1984)

("Stigma to reputation alone, absent some accompanying deprivation of present

or future employment, is not a liberty interest protected by the [F]ourteenth

[A]mendment").

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Moreover, as the trial court noted, plaintiff's reliance on Kirby and Neal

is misplaced. In Kirby, the Circuit Court determined the plaintiff's due process

rights were implicated not only because he was classified and stigmatized as a

sex offender without being convicted of a sex crime, but also the classification's

negative consequences on his conditions of confinement. 195 F.3d at 1291-92.

Here, plaintiff was neither confined nor classified as a sex offender resulting in

the deprivation of any rights or liberties.

Similarly, Neal involved the designation of inmates as sex offenders

compelling their participation in Hawaii's "Sex Offender Treatment Program"

as a precondition to their eligibility for parole. 131 F.3d at 821. The Ninth

Circuit held designating a prisoner as a sex offender and requiring him to

complete a sex offender treatment program as a precondition to parole eligibility

violated the prisoner's due process rights when the prisoner had never been

convicted of a sex offense and never had an opportunity to challenge the "sex

offender" label in an adversarial setting. Id. at 831. Unlike Neal, plaintiff was

not classified as a sex offender or compelled to participate in a sex offender

program. Moreover, the news release did not label him a sex offender or name

him. Therefore, no protected liberty interests were implicated, and no privacy

rights were violated by Kuberiet or Carey.

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B.

Plaintiff contends the trial court erred by dismissing his FCRA claims

against Kuberiet and Carey for the improper disclosure of his juvenile records

because "[e]very juvenile has an expectation of privacy in their juvenile

records." He asserts "[t]he litigation privilege does[ not] protect defendants

from liability for FCRA claims," because he "has a procedural due process right

to not hav[e] the records disclosed without first being heard by a court of law or

at a minimum, seeking permission from his parents."

In J.P. v. DeSanti, juveniles filed suit to enjoin compilation and

dissemination of social histories prepared by state probation authorities

concerning legal proceedings involving those juveniles. 653 F.2d 1080, 1081

(6th Cir. 1981). The Sixth Circuit concluded "the Constitution does not

encompass a general right to nondisclosure of private information." Id. at 1090.

The court stated: "The interest . . . in nondisclosure [of juvenile court records]

. . . is 'far afield' from those privacy rights that are 'fundamental' or 'implicit in

the concept of ordered liberty.'" Ibid. See also McCrary v. Jetter, 665 F. Supp.

182, 186 (E.D.N.Y. 1987) (holding plaintiff did not have constitutionally

protected interest in confidentiality of his youthful offender file, explaining:

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"Plaintiff's federal civil rights claim does not fall within the 'zones of privacy'

recognized by the Supreme Court.").

Here, the trial court stated:

Most of the Federal Courts have considered the

issue and have found . . . considerable doubt as to

whether a constitutional right to privacy extends to

juvenile arrest and related records, see [United States v.

T.E.S., 165 F.3d 913 (1998)], finding it doubtful that a

State may create a constitutionally protected reasonable

expectation of privacy in the nondisclosure of a

juvenile's criminal record, . . .[see also] DeSanti, [653

F.2d at 1088-90] . . . , holding there's no constitutional

right to privacy in juvenile court records as the interest

in nondisclosure of such records is far afield from those

privacy rights that are fundamental or implicit in the

concept of ordered liberty.

....

Here the claim for violation of procedural due

process fail[s] for several reasons. First, the cited cases

show there[ is] no clearly established right of privacy

violated by disclosure of a juvenile record. The [c]ourt

has already determined the plaintiff waived his claims

related to disclosure of his records and dismissed those

claims with prejudice . . . .

Further, the [c]ourt will not permit the plaintiff

an opportunity to amend both on the improper form and

also the case law which shows amendment would be

futile . . . .

The trial court correctly concluded plaintiff's claim of an FCRA violation

relating to the release of his juvenile records failed as a matter of law. Plaintiff

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did not have a protected right to the nondisclosure of his juvenile records and

there was no violation of a right under the Constitution or federal law.

Furthermore, plaintiff's argument the MCPO defendants failed to obtain the

court's permission or parental consent before disclosing his juvenile records was

not a viable claim because section 1983 cannot be used to maintain actions for

alleged violations of state law. Harvey, 635 F.3d at 609.

C.

Plaintiff argues the trial court erred by dismissing his FCRA claims

against Rafferty for similar reasons as the MCPO defendants. Pointing to count

twenty-three of the second amended complaint, he argues "Rafferty used

[p]laintiff's past juvenile adjudication on record to discriminate against

[p]laintiff as a student by not allowing him to engage in . . . sports and/or other

extra-curricular activities."

The trial court stated:

The [c]ourt finds that [c]ount [twenty-three of the

second amended complaint] must be dismissed because

plaintiff has not pled sufficient facts to support a cause

of action under [section] 1983 . . . . At oral [argument]

plaintiff's counsel indicated that plaintiff's due process

rights had been violated because Rafferty had failed to

issue a waiver which would have permitted him to play

football and plaintiff was not given the right of appeal.

Defendant's counsel offered that the waiver in question

had to come from Sayreville, not Piscataway.

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Accepting plaintiff's argument as true, it must

still fail because the [c]ourt finds that plaintiff again

does not have a fundamental or constitutional right to

participate in interscholastic sports. Thus, even

assuming that Rafferty was acting under color of law

because she was acting in her capacity as a school

Superintendent[,] plaintiff has not identified any

fundamental constitutional right violated by Rafferty to

support a viable claim under [section] 1983.

Plaintiff alleges that Rafferty used his past

juvenile record to preclude him from participating in

sports in [PHS]. However, plaintiff has provided no

legal precedent that states he is entitled to a privacy

right in his juvenile records under the constitution.

....

More importantly Rafferty would be entitled to

qualified immunity from plaintiff's claims. As a state

public official performing a discretionary function

Rafferty would be immune from suit unless she clearly

violated a statutory or constitutional right which a

reasonable person should have known[.] Harlow, 457

U.S. [at] 818.

In order for plaintiff to overcome a qualified

immunity defense plaintiff must prove that defendant's

conduct violated plaintiff's constitutional rights and

that the right was clearly established at the time of the

misconduct. Plaintiff has identified no fundamental or

constitutional right under the facts alleged and Rafferty

would be entitled to qualified immunity had the

constitutional claims not been dismissed . . . .

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We affirm substantially for the reasons expressed by the trial court and in

the preceding section of this opinion. We add that participation in school-

sponsored extracurricular activities is not a fundamental right under the United

States Constitution. Palmer v. Merluzzi, 868 F.2d 90, 96 (3d Cir. 1989); Albach

v. Odle, 531 F.2d 983, 984-85 (10th Cir. 1976); Mitchell v. La. High Sch.

Athletic Ass'n, 430 F.2d 1155, 1158 (5th Cir. 1970); Angstadt v. Midd-West

Sch. Dist., 286 F. Supp. 2d 436, 442 (M.D. Pa. 2003), aff'd, 377 F.3d 338 (3d

Cir. 2004). Because section 1983 cannot be used to maintain alleged violations

of state law, the claims against Rafferty failed as a matter of law.

IV.

In point VI of his brief, plaintiff challenges the dismissal of his intentional

IIED claim. He argues "[t]his tort is[ not] subject to any heightened pleading

requirements and the complaint sufficiently pleads the factual predicates for the

emotional infliction of emotional distress." He asserts the court erred because

it "cannot make factual determinations about the severity of the emotional

distress that [he] suffered or whether that distress was intentionally inflicted by

defendant. At this juncture, [he] is entitled to every reasonable inference." He

asserts he was entitled to discovery before the court dismissed his claim.

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To establish a claim for IIED, a plaintiff must show: (1) the actor intended

to inflict emotional distress or the actor knew or should have known emo tional

distress was a likely result of his or her conduct; (2) the conduct was extreme

and outrageous; (3) the actor's conduct was the proximate cause of plaintiff's

distress; and (4) the emotional distress sustained by the plaintiff was severe.

Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 146-47 (App. Div. 2005).

The conduct must be "so outrageous in character, and so extreme in

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

atrocious, and utterly intolerable in a civilized society." Buckley v. Trenton

Sav. Fund Soc., 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of

Torts § 46 cmt. d (Am. Law Inst. 1965)). The emotional distress must be "so

severe that no reasonable man could be expected to endure it." Ibid. (quoting

Restatement, § 46 cmt. j). The standard is an objective one. Turner v. Wong,

363 N.J. Super. 186, 200 (App. Div. 2003).

The severity of emotional distress is a mixed question of law and fact, and

therefore the court decides whether as a matter of law such emotional distress

can be found, and the jury decides whether, in fact, it has been proved. Buckley,

111 N.J. at 367. "A[] severe and disabling emotional or mental condition which

is capable of being generally recognized and diagnosed by professionals trained

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to do so qualifies as severe emotional distress." Hill v. N.J. Dep't of Corr., 342

N.J. Super. 273, 297 (App. Div. 2001) (citing Taylor v. Metzger, 152 N.J. 490,

515 (1998)).

In dismissing the IIED claim pled in the initial complaint, the trial court

stated:

Here plaintiff's allegations regarding the

defendants did not give rise to any indication the

defendants acted with any intent to cause plaintiff to

suffer severe emotional distress[] or cause him harm,

and failed to rise to the level of extreme and outrageous

conduct.

Although plaintiff claims defendants['] conduct

was extreme and outrageous, no facts have been alleged

that could give rise to any claim that defendants acted

in an extreme and outrageous way to constitute an

intentional infliction of emotional distress claim.

Simply providing plaintiff's . . . [c]ounsel's certification

and letters from plaintiff himself, and plaintiff's mother

fails to establish any entitlement to emotional distress

damages.

Dismissing the IIED claim pled against Rafferty in the second amended

complaint, the court stated:

Giving plaintiff's complaint its most expansive

reading, plaintiff has failed to plead any facts which

might reasonably support a claim for intentional

infliction of emotional distress. Plaintiff does not cite

any conduct that shows Rafferty acted with any intent

to cause him to suffer harm or severe emotional

distress.

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To the contrary, Rafferty made the decision to

preclude plaintiff from participating in activities . . .

[for] several reasons, among them concern that other

students would be harmed if the school were to lose its

NJSIAA eligibility by permitting [plaintiff] as a

juvenile adjudged to be delinquent to participate in the

program.

The [c]ourt also notes that . . . although the

complaint speaks in general terms of "outrageous

behavior" there's no identification of anything beyond

the fact[] that Rafferty was acting in her capacity as

superintendent. It was her job to make a decision

whether or not to permit plaintiff to enroll in school,

which she did permit.

It was within her role as Superintendent to decide

whether or not he should be permitted to participate in

interscholastic sports. She made the decision and

proffered at least one reasonable basis for the decision

....

Accepting those facts as true, . . . there is nothing

there from which a reasonable person might conclude

that what Rafferty did was shocking, that it was not

something that would occur in the daily lives [of]

people or that the conduct was extreme or outrageous.

The trial court correctly found the conduct alleged by plaintiff did not set

forth a cause of action for IIED because it lacked any indicia of being outrageous

and extreme. Moreover, plaintiff did not allege a medical or psychological

diagnosis or he received treatment as a result of the conduct alleged in his

pleadings.

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We reject plaintiff's contention he should have been afforded discovery

prior to the dismissal of this claim. "It has long been established that pleadings

reciting mere conclusions without facts and reliance on subsequent discovery do

not justify a lawsuit." Glass v. Suburban Restoration Co., Inc., 317 N.J. Super.

574, 582 (App. Div. 1998). Because plaintiff's claim was precluded as a matter

of law, discovery would be futile as the facts relating to his physical and

psychological conditions were known to him prior to the commencement of his

suit and not pled.

V.

In point VII, plaintiff challenges the dismissal of his civil conspiracy

claim. Similar to the IIED claim, he asserts he should be afforded discovery "to

further develop the claims which are suggested by the facts and pled in the

complaint."

Our law defines a civil conspiracy as

a combination of two or more persons acting in concert

to commit an unlawful act, or to commit a lawful act by

unlawful means, the principal element of which is an

agreement between the parties to inflict a wrong against

or injury upon another, and an overt act that results in

damage.

[Banco Popular, 184 N.J. at 177 (quoting Morgan v.

Union Cnty. Bd. of Chosen Freeholders, 268 N.J.

Super. 337, 364 (App. Div. 1993)).]

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Civil conspiracy is not an independent cause of action, but rather a

"liability expanding mechanism" which exists only if a plaintiff can prove the

underlying "independent wrong." Farris v. Cnty. of Camden, 61 F. Supp. 2d

307, 326 (D.N.J. 1999). "The gist of an action in civil conspiracy is not the

conspiracy itself but the underlying wrong, which absent the conspiracy, would

give a right of action." Malaker Corp. Stockholders Protective Comm. v. First

Jersey Nat'l Bank, 163 N.J. Super. 463, 491 (App. Div. 1978). "The essential

element of the tort is not the conspiracy[,] but the damage inflicted pursuant to

it." Ibid.

The trial court dismissed plaintiff's civil conspiracy count against the

MCPO defendants in the first amended complaint, finding it was "devoid of any

facts to suggest the defendants conspired to cause plaintiff harm," and "any

underlying wrongs [were] additionally barred because of the immunity bestowed

upon the public entity defendants." Because plaintiff's complaint failed to state

a claim, the court likewise found it could be dismissed prior to obtaining

discovery. The court dismissed the civil conspiracy count against Rafferty in

the second amended complaint, for similar reasons, finding plaintiff had

not sufficiently pled the requisite underlying act to hold

Rafferty liable . . . . In order for [Rafferty] to be held

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liable for civil conspiracy there must be an underlying

unlawful act.

. . . [P]laintiff's claims have been withdrawn or

dismissed . . . and as a result there is no predicate act

and no underlying activity that can form the basis for

the civil conspiracy.

The trial court did not err. Plaintiff's complaint alleged "[d]efendants

entered into a real agreement" to "perpetrate a tort against [him]" and

"[d]efendants . . . acted together and in concert to deprive [him of] his civil

rights." However, plaintiff failed to plead any facts identifying the nature of the

agreement between defendants giving rise to a conspiracy, when the conspiracy

occurred, or how it was accomplished. "Complaints cannot survive a motion to

dismiss where the claims are conclusory or vague and unsupported by particular

overt acts." Delbridge v. Off. of Pub. Def., 238 N.J. Super. 288, 314 (Law Div.

1989), aff'd o.b. sub nom., A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993),

certif. denied, 135 N.J. 467, cert. denied, 513 U.S. 832 (1994).

Because plaintiff failed to establish defendants violated any of his

substantive rights under the NJCRA or FCRA, there was no underlying wrong

to support the civil conspiracy claim. Furthermore, as we noted, immunity and

the litigation privilege applied to the respective defendants, which also

prevented a finding of an underlying wrong. As with the IIED claim, dismissal

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did not have to await the completion of discovery where plaintiff failed to

sufficiently plead facts showing a civil conspiracy.

VI.

In point VIII, plaintiff challenges the trial court's dismissal of his

defamation claim against Kuberiet and Carey. He argues he pled viable

defamation claims and was entitled to discovery prior to dismissal of the claims.

He asserts discovery was necessary to determine whether the MCPO defendants

were entitled to "qualified privilege . . . and even then, whether a defendant

abused that privilege is an issue reserved for the jury."

"A defamatory statement is one that is false and 'injurious to the reputation

of another' or exposes another person to 'hatred, contempt or ridicule' or subjects

another person to 'a loss of the good will and confidence' in which he or she is

held by others." Romaine v. Kallinger, 109 N.J. 282, 289 (1988) (quoting Leers

v. Green, 24 N.J. 239, 251 (1957)). See also Salzano v. N. Jersey Media Grp.,

Inc., 201 N.J. 500, 512 (2010) ("A defamatory statement is one that is false and

harms the reputation of another such that it lowers the defamed person in the

estimation of the community or deters third parties from dealing with that

person."). "The law of defamation is rooted in the notion that individuals should

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be free to enjoy their reputations unimpaired by false and defamatory attacks."

Salzano, 201 N.J. at 505.

The elements of a cause of action for defamation are: (1) defendant "made

a false and defamatory statement concerning" plaintiff; (2) "the statement was

communicated to another person (and not privileged);" and (3) defendant "acted

negligently or with actual malice." G.D. v. Kenny, 205 N.J. 275, 292-93 (2011).

"[T]he actual naming of plaintiff is not a necessary element in an action for libel.

It is enough that there is such reference to him that those who read or hear the

libel reasonably understand the plaintiff to be the person intended." Dijkstra v.

Westerink, 168 N.J. Super. 128, 133 (App. Div. 1979).

"In the case of a complaint charging defamation, plaintiff must plead facts

sufficient to identify the defamatory words, their utterer and the fact of their

publication. A vague conclusory allegation is not enough." Zoneraich v.

Overlook Hosp., 212 N.J. Super. 83, 101 (App. Div. 1986). Truth "is an absolute

defense to a claim of defamation." G.D. v. Kenny, 411 N.J. Super. 176, 187

(App. Div. 2009).

"The threshold issue in any defamation case is whether the statement at

issue is reasonably susceptible of a defamatory meaning," which is a question

of law "to be decided first by the court." Romaine, 109 N.J. at 290. "In making

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this determination, the court must evaluate the language in question 'according

to the fair and natural meaning which will be given it by reasonable persons of

ordinary intelligence.'" Ibid. (quoting Herrmann v. Newark Morning Ledger

Co., 48 N.J. Super. 420, 431 (App. Div.), aff'd on rehearing, 49 N.J. Super. 551

(App. Div. 1958)). "If a published statement is susceptible of one meaning only,

and that meaning is defamatory, the statement is libelous as a matter of law."

Ibid. "Conversely, if the statement is susceptible of only a non-defamatory

meaning, it cannot be considered libelous, justifying dismissal of the action."

Ibid.

In dismissing without prejudice the defamation claims in the first amended

complaint, the trial court stated:

Here, plaintiff contends that, "On or about

August 31[], 2015[,] defendants defamed plaintiff by

publishing written statements about plaintiff and his

case with malice and forethought that were either false,

reckless or misleading."

And, "On or about October of 2014 and thereafter

defendants defamed plaintiff by uttering and/or

publishing statements about plaintiff in this case with

malice of forethought that were either false, reckless or

misleading."

....

. . . [T]he Court is satisfied that blanket

allegations that defendants spoke and published

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defamatory statements about the plaintiff failed to

identify any such statements or provide the context for

such statements, and how if at all they defamed the

plaintiff's character.

Without properly identifying a slanderous or

libelous statement the plaintiff is unable to sustain a

claim for liable and slander.

Moreover, the attempt to distinguish between

public and private defamation is essentially meritless,

as plaintiff has failed to properly identify the libelous

writings or slanderous statements made by the

defendants, or even if any of the statements actually

identified him by name.

....

Additionally[,] plaintiff claims . . . that the

[MCPO] defendants issued a defamatory press release

about the case in that it misled the public into thinking

criminal restraint, of which plaintiff was found not

guilty, was a sexually based crime.

What plaintiff fails to acknowledge, however, is

that, "[While] criminal restraint does not in and of itself

contain a sexual element, [it] is included under Megan's

Law definition of sex offenses when committed against

minors." See N.J.S.A. 2C:7-2.

....

Moreover, while it may not be expressly required

that the defendants specifically name the plaintiff, the

[court] finds it important to note there's no allegation

that any of the defendants ever released plaintiff's name

to the public.

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Therefore, because the claim lacks any

allegations defendants specifically published any

written or oral statements that were libelous or

slanderous the libel and slander claims are dismissed

without prejudice.

When the court dismissed the defamation claims in the second amended

complaint, it stated:

Here, the [c]ourt again finds no viable cause of

action for defamation against the [MCPO] defendants

by application of the law of the case doctrine . . . .

....

While plaintiff is correct in contending the

application of the law of the case doctrine is

discretionary, the [c]ourt finds this application is

necessary here. A claim for defamation against the

[MCPO] defendants centers on the August 31 press

release. A review of the first and second amended

complaints show the claim is based on the same set of

operative facts. Plaintiff offers no additional facts in

support of the claim and the [c]ourt has already

determined that the defamation claims based on the

press release are barred.

Further, a review of the press release fails to

show any specific reference to the plaintiff by name and

the [c]ourt cannot agree the statements made constitute

defamation per se.

On appeal, plaintiff identifies seven statements from the news release he

claims are defamatory. We enumerate them as follows: (1) "[S]ix of seven

teenagers [were] charged with sexually assaulting and/or abusing four other

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teammates at [SHS;]" (2) "As was previously disclosed, the [MCPO] determined

that the defendants would not be tried as adults and that the Middlesex County

Family Court remains the proper venue for these cases[;]" (3) "The facts that

were alleged by the [MCPO] at the beginning of the case have clearly been

proven in a court of law[;]" (4) MCPO "did not pursue imposition of mandatory

sex offender registration required under Megan's law[;]" (5) "The other juvenile

tried in Family Court was found delinquent on a disorderly persons simple

assault charge, and a petty disorderly persons count of engaging in disorderly

conduct for his role in the hazing and sexual conduct[;]" (6) "[T]he investigation

determined they each played roles in the attacks upon their fellow teammates in

four separate incidents at the high school[;]" and (7) "One defendant held the

victim, while at least two of the defendants grabbed his penis and attempted to

digitally penetrate his anus. Two to five other students, who could not be

identified by the victim, surrounded him during the sexual assault."

We address these statements in turn. Statement 1 was not defamatory

because it was not false; plaintiff was charged with, among other things,

conspiracy to commit aggravated criminal sexual conduct, criminal sexual

contact, aggravated assault, hazing, riot, and criminal restraint. The news

release's usage of the phrase "sexual assault" was not defamatory because "[t]he

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law of defamation overlooks minor inaccuracies, focusing instead on 'substantial

truth.'" G.D., 205 N.J. at 294 (quoting Masson v. New Yorker Mag., Inc., 501

U.S. 496, 516 (1991)). "Minor inaccuracies do not amount to falsity so long as

the substance, the gist, the sting, of the libelous charge be justified." Ibid.

(internal quotation marks omitted) (quoting Masson, 501 U.S. at 517).

Furthermore, the statement referred to other defendants and could not

reasonably be construed to suggest plaintiff was involved in all four incidents

referenced in the release. Indeed, the release made clear the juveniles who were

tried, including plaintiff, were involved in only one of the referenced incidents.

Plaintiff claims statement 2 is defamatory because he was never subject

to waiver to adult criminal court. Whether plaintiff was subject to waiver was

a minor inaccuracy and did not constitute defamation. Moreover, the balance of

the statement was true because the Middlesex County Family Court was the

proper venue for the case.

Plaintiff claims statement 3 was false and therefore defamatory because

the MCPO never proved its case against him as he was acquitted of the original

charges and only adjudicated delinquent on lesser included offenses. However,

the statement does not claim all the charges filed against all the juveniles were

proven, but rather the facts alleged were proven. The statement was not false

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because it was supported by the guilty pleas and the delinquency adjudications

of the various juvenile defendants. The news release's reference to the "other

juvenile" who went to trial, namely, plaintiff, clearly stated he was found

delinquent on a disorderly persons simple assault charge and a petty disorderly

persons count of engaging in disorderly conduct. Therefore, the statement was

neither false nor constituted defamation.

Plaintiff contends statement 4 is "knowingly, willfully and maliciously

false" because he was never eligible for registration as a sex offender. However,

plaintiff's argument ignores the entirety of the statement, which read as follows:

"As part of the plea agreements, the [MCPO] did not pursue the imposition of

mandatory sex offender registration required under Megan's Law." (Emphasis

added). This statement is true. Moreover, the statement does not refer to

plaintiff and is inapplicable to him because he did not enter a guilty plea.

Plaintiff claims statement 5 is defamatory because he was acquitted of

hazing and the charges related to sexual conduct. This statement is not false

because he was adjudicated delinquent of the disorderly persons offenses of

simple assault and disorderly conduct for his role in the locker room incident.

His acquittal of the hazing and sexual conduct did not negate his involvement in

the incident.

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Plaintiff contends statement 6 is false because he "did not play a role in

four separate incidents" and "did not attack any of his fellow teammates."

However, plaintiff reads the statement out of context. Read in its entirety,

statement 6 states: "The seven juvenile defendants were taken into custody in

October 2014, after the investigation determined they each played roles in the

attacks upon their fellow teammates in four separate incidents at the high school

between September 19, 2014 and September 30, 2014." A thorough reading of

the statement shows it intended to convey each juvenile played a role in several

incidents—not each juvenile was involved in every incident. Indeed, the release

discussed each of the four incidents separately and ascribed only one of the four

incidents to plaintiff. Contrary to plaintiff's contention, use of the word "attack"

was not defamatory and reasonably described the underlying incidents.

The trial court did not specifically address statement 7 in its decision.

Plaintiff contends this statement is "knowingly, willfully and maliciously false"

because neither he nor any of the other juvenile defendants "were ever charged

with grabbing the victim's penis," nor were they "ever found delinquent of

grabbing the victim's penis or attempting to digitally penetrate his anus ."

In context, the statement reads as follows:

The first incident occurred on September 19,

2014, when a [seventeen]-year-old juvenile defendant

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"body slammed" a [fifteen]-year-old victim to the floor

and pretended to stomp and kick the victim, exposing

him to bodily injury.

On September 26, 2014, the same [seventeen]-

year-old defendant, along with the two who were

adjudicated delinquent following the trial, and another

[sixteen]-year-old male who is awaiting trial, took part

in an attack of a [fourteen]-year-old boy.

The victim also was forcibly knocked to the floor.

One defendant held the victim while at least two of the

defendants grabbed his penis and attempted to digitally

penetrate his anus. Two to five other students, who

could not be identified by the victim, surrounded him

during the sexual assault.

None of the juveniles were charged, pled, or adjudicated with grabbing

the victim's penis or attempting to digitally penetrate his anus. However, as the

sole juvenile tried and adjudicated, the news release, without naming plaintiff,

identifies him as participating in grabbing the victim's genitals and attempting

to anally penetrate him. The news release made sufficient references to plaintiff

such that anyone who read or heard the statement could reasonably understand

the release referred to plaintiff. Dijkstra, 168 N.J. Super. at 133.

Therefore, this aspect of plaintiff's defamation claim was pled with

enough sufficiency to survive a motion to dismiss pursuant to Rule 4:6-2(e)

because statement 7 included accusations of serious criminal activity and sexual

misconduct, which plaintiff alleges did not occur and the MCPO defendants

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knew did not occur, yet asserted in the news release. For these reasons,

dismissal of this aspect of the defamation claim is reversed and remanded for

further proceedings. We hasten to add our decision should not be construed as

an opinion on the ultimate merits of plaintiff's claim.

VII.

Finally, in point IX plaintiff contends the court erred by transferring venue

from Middlesex to Monmouth Vicinage and denying his request for

reconsideration of the transfer decision. He asserts the trial court failed to find

an actual conflict of interest, and an appearance of impropriety is not a basis to

transfer venue under Rule 4:3-2(a). He argues the matter should not have been

transferred because the cause of action arose from, and all defendants are

located, in Middlesex County, and the court should have deferred to his choice

of venue.

Judges must avoid actual conflicts of interest as well as the appearance of

impropriety in order "to promote confidence in the integrity and impartiality of

the Judiciary." DeNike v. Cupo, 196 N.J. 502, 507 (2008). Rule 4:3-2 provides

venue "shall be laid in the county in which the cause of action arose, or in which

any party to the action resides at the time of its commencement, or in which the

summons was served on a nonresident defendant." Rule 4:3-3(a)(2) states the

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Assignment Judge may order a change of venue "if there is a substantial doubt

that a fair and impartial trial can be had in the county where venue is laid."

Decisions relating to a change in venue "will not be disturbed on appeal except

upon a showing of an abuse of discretion." State v. Harris, 282 N.J. Super. 409,

413 (1995) (citing State v. Marshall, 123 N.J. 1, 76 (1991)).

The March 28, 2017 order transferring venue to Monmouth County noted

it was made "having considered . . . [Rule] 4:3-3(a) and . . . [to] avoid all

appearances of any perceived conflict . . . ." On reconsideration, the Assignment

Judge explained he denied plaintiff's motion because the

Middlesex County Prosecutor's Office appears before

[Middlesex Vicinage] judges on a regular basis and in

the interest of eliminating any appearance of

impropriety, this [c]ourt felt it was necessary to transfer

venue from Middlesex County to a sister vicinage . . . .

....

. . . And if the judge is in . . . civil today, [they]

could be in criminal tomorrow. Again, it's those

appearances with which the [c]ourt is concerned.

We discern no error either in the initial decision to transfer venue or in the

denial of reconsideration. Plaintiff's argument lacks sufficient merit to warrant

further discussion in a written opinion. R. 2:11-3(e)(1)(E).

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Affirmed in part, and reversed and remanded in part. We do not retain

jurisdiction.

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