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Zell v. Ricci

United States District Court, D. Rhode Island

March 30, 2018

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.


          WILLIAM E. SMITH, Chief Judge.

         The 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).

         I. Background

         “I 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.”[1] 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.”[2] (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.

         The day 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. ¶ 48.)

         As 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.

         Still 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.[3] (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.)

         Visibly 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.”[4] (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.)

         Later 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.”[5] (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.)

         From 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.[6] (Id. ¶¶ 145, 147.)

         Next, 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.[7] (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.)

         Following 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.)

         During 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.[8] (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, [9] the 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.)

         This 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.

         II. Legal Standard

         In 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).

         A 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).

         III. Discussion

         A. Standing of Mark and Beth Zell (“[They don't] even go here”)[10]

         At the 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 Procedure.

         Starting 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.[11]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.”).

         Plaintiffs' 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.”).

         Try as 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.”).

         Mark 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.[12]

         B. Plaintiff's Constitutional Claims

         1. Count I

         Count I 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 McGinley.[13](Compl. 27.)

         Plaintiff 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. ¶ 231.)

         The 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.

         No 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.)

         Sufficient 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. ...

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