United States District Court, D. Rhode Island
MARK ZELL, and BETH ZELL, individually and on behalf of K.Z., a minor, Plaintiffs,
BARRY RICCI, alias, Superintendent of Chariho Regional School District in his individual and official capacities; CHARIHO REGIONAL SCHOOL DISTRICT, by and through its Superintendent, Barry Ricci, alias; RYAN BRIDGHAM, alias, Dean of Students Chariho High School, in his individual and official capacities; LAURIE WEBER, alias, Former Principal of Chariho High School in her individual and official capacities; JON ANDERSON Esq., alias, Chariho Regional School District Attorney in his individual and official capacities; THE CHARIHO SCHOOL COMMITTEE, by and through its Chairperson, Sylvia Stanley, alias, in her official capacity; CRAIG LOUZON, alias, in his individual and official capacity as the former Chair of the Chariho School Committee; RACHEL MCGINLEY, alias, in her individual capacity; THE RHODE ISLAND DEPARTMENT OF EDUCATION, by and through its Commissioner, Ken Wagner, alias; KEN WAGNER, alias, in his official and individual capacity; THE RHODE ISLAND COUNCIL OF ELEMENTARY AND SECONDARY EDUCATION, by and through its Chair Daniel P. McConaghy, alias; DANIEL P. MCCONAGHY, alias, in his individual and official capacity; JOHN/JANE DOES 1-20; and JOHN DOE GOVERNMENT ENTITIES/BODIES 1-10, Defendants.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
case comes before the Court on multiple motions: (1) Rhode
Island Department of Education (“RIDE”) and Ken
Wagner's (“Commissioner Wagner”)
(collectively, “RIDE Defendants”) Motion To
Dismiss (ECF No. 12); (2) Rhode Island Council of Elementary
and Secondary Education (“Council”) and Daniel P.
McConaghy's (“Chair McConaghy”)
(collectively, “Council Defendants”) Motion To
Dismiss (ECF No. 14); (3) Jon Anderson's Motion To
Dismiss (ECF No. 22); (4) Rachel McGinley's Motion To
Dismiss (ECF No. 26); (5) Ryan Bridgham (“Dean
Bridgham”), Chariho Regional School District
(“CRSD”), Chariho School Committee
(“Committee”), Craig Louzon (“Chairperson
Louzon”), Barry Ricci (“Superintendent
Ricci”), and Laurie Weber's (“Principal
Weber”) (collectively, “Chariho
Defendants”) Motion To Dismiss (ECF No. 27); and (6)
Plaintiffs' Motion for Supplemental Jurisdiction and
Notice of Family Court Dismissal (ECF No. 51).
wish we could all get along like we used to in middle school.
I wish I could bake a cake filled with rainbows and smiles
and everyone would eat and be happy.” Although the
circumstances leading to this case started out with rainbows
and smiles, it wasn't that way for long; it was high
school, after all. To be certain, it was October 16, 2015,
the Friday of the annual “Spirit Week” at Chariho
High School (“CHS”): a day marked by
“mayhem” and “school-sponsored bad
decisions” leading up to the “big homecoming
football game.” (Pls.' Second Am. Compl.
(“Compl.”) ¶¶ 39, 41-43, ECF No. 41.)
In years past, for example, the high school permitted
“actual hay and live animals” to fill the halls.
(Id. ¶ 43.) The absence of live animals roaming
the halls this year didn't make it any less of a zoo.
began early with the morning procession. (Id. ¶
39.) Senior students sporting togas and armed with silly
string lined up outside and prepared to march through the
halls while spraying each other and underclassman who
occupied the halls in witness and participation of the
fun-filled event. (Id. ¶¶ 40-41, 46.) One
such student populating the halls was Plaintiff, K.Z., a
then-junior field-hockey player who donned her school spirit
in her uniform. (Id. ¶¶ 37, 48-49.) K.Z.,
like many other students who watched the procession, came
prepared with her own can of silly string. (Id.
seniors paraded through the halls, K.Z., who had been
standing among a group of friends on the right side of the
hallway, sprayed her silly string in the air
“indiscriminately” toward various other students
passing her by. (Compl. ¶¶ 49, 53.) Many other
students sprayed silly string, too, both through the air and
directly at other students, including in their faces at close
range. (Id. ¶ 54.) Silly string had been flying
from all directions.
standing among her friends, K.Z. took aim at a group of
toga-sporting students positioned some distance down and
across the hallway. (Id. ¶¶ 50, 53,
60-66.) Her silly string rained down on a group of two or
more girls, which included Defendant Rachel McGinley.
(Id. ¶¶ 66-69.) While K.Z. had her back
turned and still conversing with her friends, McGinley began
sprinting toward her. (Id. ¶¶ 71-74.) With
her cell phone in hand and her right arm raised over
K.Z.'s head, McGinley used the hard edge of her phone to
land several “hammer blows” to K.Z.'s head.
(Id. ¶¶ 77-80.) K.Z. fell forward.
(Id. ¶ 82.) With her cell phone in tow,
McGinley took a victory lap, laughing and smiling.
(Id. ¶ 84.) K.Z., still confused and feeling
head pain, struggled off to class, where she remained only
shortly when Dean Bridgham called K.Z. to his office.
(Id. ¶¶ 86-87.) When there, K.Z. had
difficulty comprehending Dean Bridgham's comments,
although K.Z. did understand that McGinley informed school
officials that she had struck K.Z. in the head. (Id.
¶ 88.) After asking very few questions, none of which
concerned K.Z.'s wellbeing, Dean Bridgham sent K.Z. back
to class. (Id. ¶¶ 90-92.) K.Z. was called
back to Dean Bridgham's office shortly after, where
Principal Weber was also present. (Id. ¶¶
7, 95-96.) After little questioning, Dean Bridgham informed
K.Z. that she would face a one-day suspension for
“fighting (or instigating a fight)” because the
school concluded she had sprayed silly string in
McGinley's face and called her a “bitch.”
(Id. ¶¶ 104-05, 111.) McGinley also
received a one-day suspension for the same offense.
(Id. ¶ 112.)
shaken and deeply perturbed by the news of her suspension,
K.Z. called her father, Plaintiff Mark Zell. (Id.
¶ 115.) K.Z. was then directed to wait in another room
where other students had been working. (Id. ¶
116.) While there, friends of McGinley taunted K.Z. for
McGinley “beat[ing] [her] up.” (Id.
¶ 118.) At about 11:00 a.m., Mr. Zell arrived at CHS and
inquired whether anyone had evaluated K.Z. for a concussion,
to which school officials agreed “would be a good
idea.” (Id. ¶¶ 120-21.) The
school nurse then evaluated K.Z. and immediately concluded
K.Z. was likely concussed; a hospital confirmed that K.Z. had
a “serious concussion” shortly thereafter.
(Id. ¶¶ 122-26.)
that evening, Mr. and Mrs. Zell visited the Richmond Police
Department (“PD”) to file a police report
“for the assault and battery of their minor
daughter.” (Id. ¶ 127.) An officer first
told them that McGinley would be immediately arrested;
however, without divulging its reasoning, the PD eventually
informed Mr. and Mrs. Zell that the School Resource Officer
would arrest McGinley at school the following Monday, and
then that the PD would not arrest McGinley at all unless K.Z.
was also arrested for “Disorderly
Conduct.” (Id. ¶¶ 128-29,
132-33.) Mr. and Mrs. Zell pressed school officials as to why
McGinley would not be arrested, and their response was
consistent with the PD's statement that she could only be
arrested for “disorderly conduct” if K.Z., too,
was arrested. (Id. ¶¶ 139-40.) Not
satisfied with this response and because they feared
“unjustified criminal charges against K.Z., ” Mr.
and Mrs. Zell dropped criminal charges against McGinley.
(Id. ¶ 141.)
this point, however, Mr. and Mrs. Zell launched a vigorous
challenge to the school's decision to suspend K.Z. First,
while K.Z. was at home recovering for about six days, Mr.
Zell appealed her suspension to Superintendent Ricci and
“wrote a detailed accounting of events as reported by
K.Z., her friends, and the video.” (Id.
¶¶ 142-44.) Although Superintendent Ricci asked to
speak with K.Z., he wrote his decision that upheld the
suspension before ever speaking to her
directly. (Id. ¶¶ 145, 147.)
Plaintiffs appealed the decision of Superintendent Ricci to
the Committee. (Id. ¶ 154.) At the Committee
hearing on or around February 23, 2016, Defendant Attorney
Anderson represented CRSD and Superintendent Ricci,
“prosecuting the upholding of K.Z.'s
suspension.” (Id. ¶¶ 157, 167.) The
hearing was conducted by another attorney for the Committee,
who Superintendent Ricci hired. (Id. ¶ 167.)
During Attorney Anderson's presentation, he argued that
“a cell phone is a teenage girl's most prized
possession” never to be used as a weapon despite
knowing that McGinley indeed struck K.Z. with her cell phone,
while only presenting portions of the video displaying the
altercation between K.Z. and McGinley. (See id.
¶¶ 168-70.) The attorney presiding over the
Committee's hearing precluded Plaintiff from showing
another video that allegedly displayed McGinley striking
another student in the head with her cell phone on a school
bus. (Id. ¶¶ 173-74.) In a decision signed
by Chairperson Louzon, the Committee upheld K.Z.'s
suspension. (Id. ¶¶ 180-81.)
the Committee's decision, Plaintiffs hired present
counsel and took another appeal to RIDE. (Id. ¶
182.) RIDE held a hearing in the summer of 2016, over which a
RIDE Hearing Officer presided. (Id. ¶¶
183, 192.) The hearing “included two full days with
over ten (10) witnesses” and “resulted in nearly
a foot of transcripts.” (Id. ¶ 183.) One
such witness was K.Z., who admitted to saying
“bitch” after McGinley struck her head.
(Id. ¶ 185.) K.Z.'s former best friend, A.
Doe, also testified that K.Z. “yelled ‘bitch'
before spraying silly string” at McGinley.
(Id. ¶ 184.) A. Doe, whose truthfulness was
called into doubt at the RIDE hearing, also recalled that
K.Z. had asked whether she should have sprayed McGinley
before she did so. (Id. ¶¶ 186-87.) Dean
Bridgham also “explain[ed] that there was a lack of
some needed policy or some related failure by the school
district to handle the situation, including K.Z.'s
concussion.” (Id. ¶ 188.) Dean Bridgham
explained that he notified Superintendent Ricci of this
“failure, ” but he was cutoff before continuing
his testimony. (Id. ¶¶ 189-92.) The RIDE
hearing also included extensive cross examination by
Plaintiffs of the various witnesses, and Plaintiffs also
presented an expert witness. (See id. ¶¶
194-95.) Despite the length of the hearing and the amount of
witnesses produced, the decision that came out of the hearing
was, to the Plaintiffs' way of thinking,
“shockingly short” and omitted citation to much
of Plaintiffs' evidence. (Id. ¶ 198.)
a break at the RIDE hearing, the Hearing Officer and
Superintendent Ricci were witnessed alone in a room
“talking with the video playing as [Superintendent]
Ricci pointed out parts of the video to the RIDE Hearing
Officer ex parte.” (Id. ¶ 196.) This ex
parte meeting was never authorized by or disclosed to
Plaintiffs. (Id. ¶ 197.) Nevertheless,
Plaintiffs persisted. Viewing RIDE's decision as plagued
with error (five specifically), (Compl. ¶¶ 290-95),
Plaintiffs appealed to the Council. (Id. ¶ 200.)
In preparation for their hearing, the Council received the
full record encompassing “nearly a foot-high stack of
transcripts, ” Plaintiffs' forty-five page (single
spaced) appeal brief infused with hundreds of record and
legal citations and allegations of error, CRSD's
eighteen-page opposition brief, and Plaintiffs'
thirty-six-page reply brief. (Id. ¶¶
207-08.) After approximately a twenty-minute argument by
Plaintiffs' counsel, “a few comments by”
CRSD's attorney, and a brief, five-minute deliberation,
Council delivered an oral decision upholding the decision
below. (See id. ¶¶ 209, 212.) The oral
decision was followed by a five-page written decision on May
9, 2017, which affirmed K.Z.'s suspension and rejected
each of Plaintiffs' five averments of error.
(Id. ¶¶ 214-15.)
eleven-count, forty-nine-page Complaint followed. And then
came Defendants' various motions to dismiss. On February
I, 2018, the Court heard oral argument in this matter.
considering a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must
“accept the truth of all well-pleaded facts and draw
all reasonable inferences therefrom in the pleader's
favor.” Riggs v. Curran, 863 F.3d 6, 10 (1st
Cir. 2017) (quoting Guadalupe-Báez v.
Pesquera, 819 F.3d 509, 514 (1st Cir. 2016)). However,
“to survive a Rule 12(b)(6) motion . . . a complaint
must contain factual allegations that ‘raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true . . .
.'” Pérez-Acevedo v. Rivero-Cubano,
520 F.3d 26, 29 (1st Cir. 2008) (quoting Bell Atl. v.
Twombly, 550 U.S. 544, 555 (2007)). In other words,
although “the pleading standard . . . does not require
‘detailed factual allegations, ' . . . it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 555).
“A pleading that offers ‘labels and
conclusions' or a ‘formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
similar standard is applied when the Court construes a motion
to dismiss under Rule 12(b)(1). Murphy v. United
States, 45 F.3d 520, 522 (1st Cir. 1995). The Court, in
its review, remains cognizant that “the party invoking
the jurisdiction of a federal court carries the burden of
proving its existence.” Taber Partners, I v. Merit
Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993).
Standing of Mark and Beth Zell (“[They don't] even
outset, Plaintiffs (parents) Mark and Beth Zell lack standing
as to any of their claims. This includes claims asserted on
their own behalf and those brought in a representative
capacity pursuant to Rule 17(c) of the Federal Rules of Civil
with the latter, it is now undisputed that Plaintiff K.Z.
reached the age of majority prior to Plaintiffs' filing
the Second Amended Complaint on November 24,
2017.See, e.g., Lausin ex rel.
Lausin v. Bishko, 727 F.Supp.2d 610, 625 n.5 (N.D. Ohio
2010) (“[W]hen [the minor plaintiff] became 18 years
old, [her mother] lost her standing to bring this lawsuit in
a representative capacity on behalf of [her
daughter].”); see also Vandiver v. Hardin Cty. Bd.
of Educ., 925 F.2d 927, 930 (6th Cir. 1991) (holding
parents lost standing to bring claims in representative
capacity to enforce son's rights when son turned
eighteen, the age of legal majority under state law);
cf. R.I. Gen. Laws § 15-12-1(a) (“[A]ll
persons who have attained the age of eighteen (18) years
shall be deemed to be persons of full legal age.”).
Mark and Beth Zell's claims on their own behalf also fall
away for lack of standing. First, in Count I, they suggest a
procedural-due-process violation premised on the assertion
that they maintained a “property interest in not being
deprived of their money without due process of law.”
(Compl. ¶ 229.) Plaintiffs' averment that they spent
money and other resources to prosecute this lawsuit does not
implicate a recognized property interest under the Due
Process Clause. Indeed, “the expense of defending
against a lawsuit is not itself a protectable property
interest.” Powell v. Fujimoto, 119 F.
App'x 803, 806 (7th Cir. 2004); see also Workman v.
Jordan, 32 F.3d 475, 480 n.4 (10th Cir. 1994)
(“These incidental losses do not give rise to an
independent protected property interest.”).
they might to allege a separate and distinct injury, the
remainder of Mark and Beth Zell's allegations are
entirely derivative of their daughter's. Yet one person
lacks standing to advance the constitutional rights of
another. See United States v. Raines, 362 U.S. 17,
21 (1960); see also Pittsley v. Warish, 927 F.2d 3,
8 (1st Cir. 1991), abrogated on other grounds by Martinez
v. Cui, 608 F.3d 54, 63-64 (1st Cir. 2010)
(“[O]nly the person toward whom the state action was
directed, and not those incidentally affected, may maintain a
§ 1983 claim.”).
and Beth Zell lack standing as to each of their claims
(Counts I, II, and III). Therefore, the Court dismisses
Plaintiffs' Complaint entirely as to Mark and Beth Zell.
Accordingly, the analysis that follows discusses
Plaintiffs' claims only as they pertain to Plaintiff K.Z,
on her own behalf.
Plaintiff's Constitutional Claims
fails to state a claim. Here, pursuant to 42 U.S.C. §
1983, Plaintiff alleges procedural-due-process violations
under the Fifth and Fourteenth Amendments of the United
States Constitution and Article 1, Section 2 of the Rhode
Island Constitution against all Defendants but
avers that Defendants denied her “liberty interest in
not being deprived of her reputation, a right to not endure
‘stigma' plus a right not to be deprived of present
or future educational, scholarship, and job opportunities
without procedural due process of law.” (Id.
¶ 228.) Specifically, Plaintiff alleges that Defendants
denied her procedural due process by “wrongly accusing
Plaintiff K.Z. of instigating a fight, assigning a suspension
permanently on her record, and when appealed, . . .
depriv[ing] Plaintiffs of proper notice, opportunity to be
heard, and/or a fair hearing with an impartial decision
maker” in each layer of appeal. (Id. ¶
Court need not even delve into whether Plaintiff states a
claim for a violation of procedural due process, i.e.,
whether Plaintiff's claim implicates a viable liberty
interest of which Plaintiff could be deprived, because the
answer to a separate question, “what process is due,
” see Morrissey v. Brewer, 408 U.S. 471, 481
(1972), is fatal to Plaintiff's claim. That is, as a
matter of law, based on the punishment K.Z. received - a
one-day, in-school suspension - it is clear that she received
significantly more process than she was due.
inference that this Court could draw could rescue Plaintiff
from the ineluctable conclusion that she received
constitutionally adequate process. Indeed, it is baffling,
based on how much process Plaintiff (and her parents)
received, that she could, with a straight face, assert a
procedural-due-process violation in this Court. The process
Plaintiff received, as outlined by her complaint, was as
follows. Dean Bridgham met with K.Z. with respect to the
incident that Defendant McGinley brought to the attention of
administration prior to making any discipline determination.
(Compl. ¶¶ 87-89, 91-92.) Indeed, Dean Bridgham
interviewed K.Z. twice. (Id. ¶ 95.) During the
first meeting, Dean Bridgham informed K.Z. that McGinley had
informed school officials that “she had hit K.Z. in the
head.” (Id. ¶ 88.) Principal Weber was
also present in at least one of Dean Bridgham's meetings
with K.Z. (Id. ¶ 96.) Then, Plaintiff was
allowed to challenge her discipline in an appeal before
Superintendent Ricci, who was provided with additional
evidence including “a detailed accounting of events as
reported by K.Z., her friends, and the video” composed
by Mr. Zell. (Id. ¶ 144.) Plaintiff was then
permitted another layer of process: an evidentiary hearing
before the Committee, where she was represented by counsel,
who questioned witnesses and presented evidence.
(Id. ¶¶ 154, 168-74.) Plaintiff then
participated in a hearing before the RIDE Hearing Officer,
where more than ten witnesses (including an expert witness
for Plaintiff) testified over the course of two full days.
(Id. ¶¶ 183, 195.) The result of this
hearing was nearly one foot of transcripts. (Id.
¶ 183.) But that's not all. Plaintiff took another
appeal to the Council, where there was another hearing,
exhaustive briefing, and another written decision.
(Id. ¶¶ 200, 207-08.)
procedural due process requires “not an
‘elaborate hearing before' a neutral party, but
simply ‘an informal give-and-take between student and
disciplinarian' which gives the student ‘an
opportunity to explain his version of the facts.'”
Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir.
1988) (quoting Ingraham v. White, 430 U.S. 651, 693
(1977) (White, J., dissenting)). Plaintiff received more
process than the Constitution dictates. She was entitled to
“notice and an opportunity to be heard, ”
id. at 12, before discipline was imposed, and she
received that plus numerous full-blown hearings replete with
neutral decision-makers, full adversarial hearings, and the
opportunity to fully argue her case. Therefore, her
procedural-due-process claim (Count I) fails at the
threshold. See id. at 12-13; cf. Bethel Sch.
Dist. No. 403 v. ...