KOUTZIS v. MELLEBY

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY P.K., by and through his legal guardians ELEFTHERIA KOUTZIS and KYRIACOS KOUTZIS, Plaintiffs, v. Civil No. 18-485 (NLH/DEA) HAROLD MELLEBY, JR., OPINION individually and in his official capacity; EASTERN REGIONAL HIGH SCHOOL; EASTERN CAMDEN COUNTY REGIONAL SCHOOL DISTRICT; EASTERN CAMDEN COUNTY REGIONAL BOARD OF EDUCATION, and ROBERT M. TULL, JR., individually and in his official capacity, Defendants. APPEARANCES: LILIA LONDAR DANIEL EDWARD RYBECK GEORGIOS FARMAKIS WEIR & PARTNERS LLP 215 FRIES MILL ROAD 2ND FLOOR TURNERSVILLE, NJ 08012 Attorneys for Plaintiff P.K., by and through his legal guardians, Eleftheria and Kyriacos Koutzis. RICHARD L. GOLDSTEIN EDWARD J. PARK MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA 15000 MIDLANTIC DRIVE SUITE 200 P.O. BOX 5429 MOUNT LAUREL, NJ 08054 Attorneys for Defendants Harold Melleby, Jr., Eastern Regional High School, Eastern Camden County Regional School District, Eastern Camden County Regional Board of Education, and Robert M. Tull. HILLMAN, District Judge This case is an Individual with Disabilities Education Act (“IDEA”) and 42 U.S.C. § 1983 case concerning whether a free appropriate public education (“FAPE”) was given to a minor plaintiff, P.K., and whether an allegedly false police report made by school officials violated Plaintiff’s constitutional or statutory rights. Presently before the Court is Defendants’ Motion to Dismiss, Plaintiff’s Cross-Motion to Amend the Complaint (“Motion to Amend”), and Plaintiff’s Amended CrossMotion to Amend the Complaint (“Amended Motion to Amend”). For the reasons discussed herein, the Court will grant in part and deny in part Defendants’ Motion to Dismiss, deny without prejudice Plaintiff’s Motion to Amend, and grant in part and deny in part without prejudice Plaintiff’s Amended Motion to Amend. BACKGROUND We take our brief recitation of the facts from Plaintiff’s Complaint and proposed Amended Complaint. Plaintiff, P.K., was a freshman at Defendant Eastern Regional High School (“Eastern”) in 2017. His parents are Kyriacos and Eleftheria Koutzis (respectively, “Mr. Koutzis” and “Mrs. Koutzis”). Defendant Eastern is within the Defendant Eastern Camden County Regional School District (the “District”) and is included within the purview of Defendant Eastern Camden County Regional School District Board of Education (the “Board”). Defendant Robert M. Tull, Jr. is the Principal of Eastern and Harold Melleby, Jr. is the Superintendent of the District. On August 29, 2017, Mrs. Koutzis sent a letter to Defendants detailing that P.K.’s psychiatrist, Adam D. Hauser, M.D., diagnosed P.K. with (1) panic disorder, (2) agoraphobia, and (3) generalized anxiety disorder. The letter also stated that Dr. Hauser indicated P.K. expressed symptoms consistent with autism spectrum disorder. Defendants did nothing in response to this letter. Mrs. Koutzis sent another letter on October 24, 2017. In that letter, Mrs. Koutzis indicated that Dr. Hauser had additionally diagnosed P.K. with (a) autism spectrum disorder and (b) attention-deficit disorder and requested Defendants prepare a Section 504 Individual Accommodation Plan (an “IAP”). Plaintiff alleges Defendants created a “sham” IAP in November 2017, which did not address either P.K.’s autism or his anxiety. (Pl.’s Compl. ¶ 15.) On December 4, 2017, Defendant Tull found P.K. and another student in the bathroom at Eastern. The other student was smoking an electronic cigarette. Defendant Tull ordered the two students to come with him to his office. Defendant Tull alleged while the three were walking to his office that P.K. called Defendant Tull a “bitch.” (Pl.’s Compl. ¶ 22.) P.K. denies calling Defendant Tull a “bitch.” A search of P.K.’s belongings revealed he did not possess an electronic cigarette. Defendant Tull suspended P.K. for two days. Mrs. Koutzis was told that P.K. had received a two-day suspension, asked to pick him up, and advised the suspension could be appealed to Defendant Melleby. She appealed. The appeal was set for December 8, 2017. In advance, Mrs. Koutzis wrote a letter to Defendant Melleby stating the following: • P.K.’s suspension was without justification; • P.K.’s suspension was discriminatory; and • Defendants had not accommodated P.K.’s autism, specifically the social communication disorder aspect, which “prevents P.K. from processing intimidating language appropriately.” (Pl.’s Compl. ¶ 30.a.-c.) P.K., his parents (Mr. Koutzis by phone), and Defendants Melleby and Tull were present at the meeting on December 8, 2017 (the “Appeal”). According to Plaintiff’s allegations, the meeting was unproductive. Plaintiff claims Defendant Melleby was unprofessional and raised his voice, interrupted Mrs. Koutzis, and slammed books. P.K. allegedly called Defendant Melleby a “baby,” but did not threaten him. (Pl.’s Compl. ¶ 38.) Defendant Melleby ordered Plaintiff and Mrs. Koutzis to “vacate the premises and stated the police were being called.” (Pl.’s Compl. § 41.) P.K. left, Mrs. Koutzis stayed. After Defendants Melleby and Tull threatened to call the police a second time, Mrs. Koutzis left the office. Plaintiff and Mrs. Koutzis exited the building, but could not leave the premises because their car was “intentionally blocked by Defendants’ employee’s car.” (Pl.’s Compl. ¶ 45.) The alleged argument between Defendant Melleby and Mrs. Koutzis continued outside. Defendant Melleby allegedly insulted both Plaintiff and his mother. Shortly thereafter, the Voorhees Police Department (“VPD”) arrived and stated they were responding to a call that Plaintiff had a gun. Plaintiff was put on the ground, searched, handcuffed, and detained. No gun was found. Plaintiff was released from police custody and allowed to return home. The VPD did not file any criminal charges against Plaintiff at that time. On December 12, 2017, Defendant Melleby sent a letter to Plaintiff and his parents advising them that Plaintiff was to start homebound instruction immediately because of his “misconduct and actions.” (Pl.’s Compl. ¶ 54.) Further, Defendant Melleby stated Plaintiff’s “enrollment status w[ould] be reviewed following the adjudication of charges filed with the [VPD].” (Pl.’s Compl. ¶ 55.) Plaintiff claims this was a knowingly false and malicious statement, as no charges had been filed at that time. Defendant Melleby also advised Plaintiff and his parents that Plaintiff had the right to appeal this decision at the Board’s meeting of December 20, 2017 (the “Board Meeting”). On December 19, 2017, Plaintiff’s counsel advised Defendant Melleby that Plaintiff would be appealing this decision at the Board Meeting. On December 20, 2017, Plaintiff’s counsel appeared on his behalf at the Board Meeting. Plaintiff claims his counsel was limited in his ability to cross-examine Defendant Tull by the Board’s solicitor, Anthony Padovani. Plaintiff also claims that Defendant Tull stated Plaintiff did not have a gun and that aggravated assault charges had been filed on December 8, 2017. Defendant Tull stated he believed there was “some sort of miscommunication with the police.” (Pl.’s Compl. ¶ 66.) On December 22, 2017, the VPD called Mrs. Koutzis and notified her that Defendant Melleby had filed a criminal citizen’s complaint against P.K. for third-degree terroristic threat. P.K. was processed on December 26, 2017 and formally charged. According to Defendants, Plaintiff “through his counsel, accepted a plea deal analogous to a pretrial intervention in adult criminal proceedings.” (Defs.’ Mot. to Dismiss 7.) No party provides documentation evidencing this assertion. On December 8, 2017, Plaintiff was banned from school premises and received homebound instruction. Plaintiff complains of the adequacy of homebound instruction, as it did not include in-person lessons, devices compatible with the software used for homebound instruction, or an IAP. On January 12, 2018, Mr. and Mrs. Koutzis filed a complaint on behalf of Plaintiff P.K. against Defendants. The Complaint alleges ten counts under 42 U.S.C. § 1983 - including a Monell claim, (Counts I, II, and VIII), 42 U.S.C. § 1985 (Count III), the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12132 (Count IV), the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 , et seq. (Count IX), the Rehabilitation Act, referred to here also as Section 504 (Count X), common law false arrest (Count V), and intentional and negligent infliction of emotional distress (Count VI and VII). That same day, Plaintiff requested the Court to enter a temporary restraining order or preliminary injunction requiring Defendants to reinstate him to Eastern immediately. This Court held a hearing on this application on January 23, 26, and 29 2018 as well as on February 26, 2018. During those hearings, representations were made by counsel, but no live testimony was taken. Testimony was submitted in the form of affidavits as requested by the Court. Of relevance to the matters presently under consideration, the Court preliminarily determined that Defendants had not complied with statutory requirements as to Plaintiff’s indefinite suspension and that, as a result, exhaustion of administrative remedies was excused as to that claim. As a result of these proceedings, the parties agreed to reinstate Plaintiff to Eastern immediately and agreed to prepare an IEP for Plaintiff, subject to certain steps which Defendants claim Plaintiff has yet to take. (Defs.’ Mot. to Dismiss 7.) Defendants state Plaintiff is still currently enrolled in Eastern. (Defs.’ Mot. to Dismiss 7.) On November 30, 2018, Defendants filed their Motion to Dismiss. On January 15, 2019, Plaintiff filed the Motion to Amend. On March 25, 2019, Plaintiff filed the Amended Motion to Amend. All motions have been fully briefed and are ripe for adjudication. DISCUSSION A. Subject Matter Jurisdiction This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367. B. Standard for Motion to Dismiss When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (citations omitted) (first citing Conley v. Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679 (2009)). A court may “generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). A district court, in weighing a motion to dismiss, asks “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in the coffin for the ‘no set of facts’ standard that applied to federal complaints before Twombly.”). “A motion to dismiss should be granted if the plaintiff is unable to plead ‘enough facts to state a claim to relief that is plausible on its face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at 570 ). C. Motion to Dismiss Defendants’ Motion to Dismiss can be categorized into three overall arguments. First, Defendants argue Plaintiff’s IDEA and Section 504 claims should be dismissed because of Plaintiff’s failure to exhaust administrative remedies. Second, Defendants argue Plaintiff’s claims stemming from the alleged false arrest should be dismissed because of application of the Heck doctrine or because no state action was involved. Third, Defendants argue Plaintiff’s state law tort claims should be dismissed because Plaintiff failed to file a timely notice of claim. Plaintiff opposes these arguments. The Court will address each of these overall arguments in turn. a. The IDEA and Section 504 Claims Defendants argue that both the IDEA and Section 504 claims should be dismissed for failure to exhaust administrative remedies. Defendants argue that Plaintiff inappropriately bypassed an administrative hearing, instead filing his Complaint directly in federal court. In opposition, Plaintiff asserts it was proper to file his Complaint in federal court, as he was not afforded due process and thus was excused from exhaustion of administrative remedies. It appears the parties agree: Plaintiff has not exhausted administrative remedies as normally required for his IDEA and IDEA-related Section 504 claims. The law is also clear: “the policy of requiring exhaustion of remedies in the Disabilities Education Act is a strong one.” Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775 , 778 (3d Cir. 1994). In fact, in the Third Circuit, “exhausting the IDEA’s administrative process is required in order for the statute to ‘grant[] subject matter jurisdiction to the district court[].’” Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 272 (3d Cir. 2014) (quoting Komninos, 13 F.3d at 778 (alterations in original)). Even so, “some exceptions have been recognized,” which allow a court to excuse a lack of exhaustion. Id. Those exceptions, however, are narrow and limited only to the following circumstances: • If exhaustion would be futile or inadequate; • If the question for review is purely legal; • If the underlying administrative agency “cannot grant relief”; or • If “exhaustion would work ‘severe or irreparable harm’ upon a litigant.” Beth V. by Yvonne V. v. Caroll, 87 F.3d 80 , 89 (3d Cir. 1996) (quoting Komninos, 13 F.3d at 778). It is only the first of these scenarios which Plaintiff asserts applies in this matter. Before addressing the question of exhaustion, it is important to describe the basis of the claims, as different violations require different methods of exhaustion under New Jersey law, which is controlling on the question of exhaustion. Two claims are made under IDEA and Section 504. First, Plaintiff complains that Defendants both failed in identifying, evaluating, and creating an IEP for Plaintiff. Second, Plaintiff claims Defendants failed to appropriately discipline him. The Court has previously determined, upon prompting by Defendants’ former counsel at the January 26, 2018 hearing, that Plaintiff’s claims based in discipline were expressly excused from the administrative exhaustion requirement. The Court found that it was excused under the futility exception because Defendants had failed to follow – in multiple respects – New Jersey law for the discipline imposed. Accordingly, the Court will not dismiss these claims for failure to exhaust administrative remedies.1 The complaints as to whether Defendants’ satisfied their IEP obligations for Plaintiff are, however, factually independent and have different exhaustion requirements. For those claims, a “party may elect to have the complaint investigated by the state educational agency, see 34 C.F.R. § 300.661 , or avail itself of an ‘impartial due process hearing,’ 20 U.S.C. § 1415 (f).” M.G. v. Crisfield, 547 F. Supp. 2d 399, 412 (D.N.J. 2008) (quoting A.W. v. Jersey City Public Schs., 486 F.3d 791 , 802 (3d Cir. 2007)). As stated supra, it is undisputed that Plaintiff did not avail himself of either avenue of exhaustion. It is also clear that Plaintiff cannot assert that exhaustion would be futile as to this claim. There can be no 1 Defendants’ request could be considered one for reconsideration. However, Defendant’s request would be nearly a year late. As such, the Court need not and will not reconsider its previous ruling on this issue. allegations of due process violations nor failures on Defendants part concerning due process because Plaintiff did not file a complaint initiating an investigation or due process hearing. See N.J. ADMIN. CODE § 6A:14-2.7 (describing the process for requesting a due process hearing); N.J. ADMIN. CODE § 6A:14-9.2 (describing the process for a complaint investigation). Thus, the Court must dismiss those IDEA and Section 504 claims for lack of subject matter jurisdiction. See Batchelor, 759 F.3d at 272 (“In the normal case, exhausting the IDEA’s administrative process is required in order for the statute to ‘grant[] subject matter jurisdiction to the district court[].’” (Komninos, 13 F.3d at 778 (alterations in original)).2 Defendants also argue that the remaining IDEA and Section 504 claims are moot because Plaintiff’s requested relief has been given. Plaintiff argues those claims are not moot because it is requesting attorneys’ fees in conjunction with those 2 The Court notes it has also considered the fact that Defendants agreed during the January 23, 2018 hearing before this Court, through prior counsel, to satisfy its IEP obligations with Plaintiff. Obviously, this concession is in tension with the fact that Defendants assert the IEP claims should be dismissed for lack of exhaustion. In other words, it would appear Defendants’ agreement to complete an IEP for Plaintiff would constitute a waiver of its exhaustion argument. Although Plaintiff did not argue this point, the Court holds that this agreement does not constitute waiver, because the exhaustion requirement is jurisdictional in nature and cannot be waived. In re Morrissey, 717 F.2d 100 , 102 (3d Cir. 1983) (noting that lack of jurisdiction is non-waivable). claims. Ignoring, for the moment, the issue of attorneys’ fees, the Court notes that Defendants’ agreement to give Plaintiff this relief does not moot a claim, just as an admission of liability would not moot a claim. Instead of filing a motion to dismiss, Defendants should file, if Plaintiff consents, a joint stipulation of dismissal. Moreover, because the Court will grant Plaintiff’s request to add attorneys’ fees, not all relief requested has been granted. Therefore, the claim is still live. Accordingly, the Court will deny Defendants’ Motion to Dismiss as it relates to the IDEA and Section 504 claims on disciplinary issues and grant it as it relates to the IDEA and Section 504 claims on the IEP issue. b. The False Arrest Claims3 Plaintiff asserts claims under § 1983, § 1985, and the ADA for Plaintiff’s allegedly false arrest.4 Defendants argue all claims stemming from the allegedly false report or complaint should be dismissed because either (1) the Heck doctrine bars those claims or (2) the reporting of a crime to the police is not state action. Plaintiffs’ opposition is solely focused on the application of the Heck doctrine. Plaintiffs assert the 3 Based on the Court’s ruling here, the Court finds that Defendants’ qualified immunity argument is moot. 4 The Court notes that Plaintiff also asserts a false arrest common law claim. The Court will address this claim infra. Heck doctrine does not apply because the false arrest claims concern statements made to the police on December 8, 2017, not the criminal complaint filed by Defendant Melleby on December 22, 2017. It was only, according to Plaintiff’s, the criminal complaint that could have led to the alleged plea deal and consequent application of the Heck doctrine. Before addressing these claims, the Court must first address the argument concerning the Heck doctrine. The factual predicate for this argument is that Plaintiff pled guilty on June 22, 2018 to the crime he was charged with on December 22, 2017. Obviously, based on the time the complaint here was filed, this assertion is not contained in Plaintiff’s Complaint. While it is true that in ruling on a motion to dismiss, a court has “‘discretion to address evidence outside the complaint . . . .,’” a court “‘may [only] consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.’” CitiSteel USA, Inc. v. Gen. Elec. Co., 78 F. App’x. 832, 835 (3d Cir. 2003) (quoting Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 559 (3d Cir. 2002); PBGC v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). The factual predicate that Defendants rely upon for this argument is not contained in an undisputedly authentic document, but is instead contained in argument in their brief. As such, the Court cannot consider Defendants’ assertion and, by extension, their argument. Accordingly, the Court will not consider the application of the Heck doctrine to any of the false arrest claims. i. The § 1983 Claims Plaintiff brings three claims: a § 1983 claim, § 1983 conspiracy claim, and § 1983 municipal liability claim, a Monell claim. Defendants argue there has been no state action, so any claims under § 1983 must be dismissed. A claim under 42 U.S.C. § 1983 does in fact require state action. See Boyce v. Eggers, 513 F. Supp. 2d 139, 144 (D.N.J. 2007) (“Under 42 U.S.C. § 1983 , a defendant must have caused a constitutional violation ‘under color of law’ to be civilly liable for that violation. Because the Constitution’s state action requirement is identical to the ‘under color of law’ requirement in 42 U.S.C. § 1983 , . . . the analysis of whether [the defendant] was acting under color of law will inform both whether she is suable under § 1983 and whether any violation of the Constitution occurred.” (citation omitted)). Without more, a state or municipal employee reporting suspected criminal conduct to the police is not state action. See id. (“There is not [sic] merit to [the p]laintiff’s argument that [the defendant] was acting under color of law when she filed her complaint merely because she was employed by [a b]orough at the time.”). As the court in Boyce explained: It is clear that she was complaining to the police and filing a complaint in the same manner as would any private citizen. There is no allegation that she was under the direction of her employer or used her position in any way to effectuate the filing. There is no allegation, nor any evidence, that her usual job duties involved any of the tasks she performed to file the criminal complaint. Nor is there evidence indicating that any power associated with her position enabled [the defendant] to file the complaint. As such, no reasonable jury could find that she was acting under color of law. Id. Here, the allegations are similarly deficient. There are no allegations indicating Defendants Melleby and Tull were (1) under the direction of Eastern, the District, or the Board, (2) used their position to effectuate the filing, (3) usually reported criminal conduct of this nature, or (4) their positions enabled them in some special way to report Plaintiff’s behavior. Thus, regardless of whether the report was false, it is clear no state action was involved. Plaintiff also alleges conspiracy under § 1983. The § 1983 conspiracy is deficient because Plaintiff is not relieved of his duty to allege state action when alleging a conspiracy under § 1983. See Miles v. Twp. of Barnegat, 343 F. App’x 841 , 845 (3d Cir. 2009) (discussing cases requiring state action by a member of the conspiracy in order for liability to attach under § 1983). Therefore, the § 1983 conspiracy case must also be dismissed. Finally, Plaintiff alleges a Monell claim. Under this claim, Plaintiff asserts “Defendants Melleby and Tull have final policy making authority on behalf of the High School and Board” and that Eastern and the “Board officially sanctioned, authorized, ratified, acquiesced in, or condoned the decision of the individual Defendants to unlawfully arrest Plaintiff.” (Pl.’s Compl. ¶¶ 111-12.) In other words, the policy or custom to be considered for this Monell claim is the decision of Melleby and Tull to make a false statement to the police. As with the other § 1983 claims, the Monell claim is similarly deficient. A Monell claim arises under § 1983. Lapella v. City of Atl. City, No. 10-2454 (JBS/JS), 2012 U.S. Dist. LEXIS 100327 , at *10 (D.N.J. July 18, 2012) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). Thus, again, it is subject to the state action requirement. See Fortnua’s Cab Serv. v. City of Camden, 269 F. Supp. 2d 562, 565 (D.N.J. 2003) (“Without evidence of established government conduct depriving Plaintiffs of their rights, there is no requisite state action necessary for a due process violation.”). Even though it is clear Plaintiff has not alleged state action, it is not clear whether factual predicates exist which would allow Plaintiff to allege state action. Particularly, it is unclear to this Court whether Plaintiff could allege that Defendants Melleby and Tull’s “usual job duties” involved reporting criminal activity within a school by one of its students to the police. Although the Court will dismiss Plaintiff’s § 1983 claims, it will do so without prejudice. Plaintiff may move for leave to amend his complaint in this manner at an appropriate time. ii. The § 1985 Claim Defendants argue that the § 1985 conspiracy claim should be dismissed because Plaintiff’s allegations are merely conclusory. Plaintiff argues that his allegations sufficiently comply with § 1985 and the federal pleading requirements. While the allegations contain some of the necessary detail, they are ultimately deficient. The elements of a § 1985(3) claim are as follows: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983)).5 In stating a § 1985(3) claim “a plaintiff 5 The Court notes here that § 1985(3), unlike § 1983 does not require state action. See Farber, 440 F.3d at 134 -35 (citing Griffin v. Breckenridge, 403 U.S. 88, 101 (1971)) (“In Griffin, however, the Court reversed course and held that a § 1985(3) claim can reach private as well as public conspiracies that seek to deprive a class of equal protection of the laws or equal must allege both that the conspiracy was motivated by discriminatory animus against an identifiable class and that the discrimination against the identifiable class was invidious.” Id. at 135 (citing Aulson v. Blanchard, 83 F.3d 1, 4-5 (1st Cir. 1996)). Only certain classes allow a plaintiff to meet the “invidious” requirement, including “race, sex, or mental retardation.” Id. at 135 . It is clear that elements three and four are met here, as the allegedly false report may qualify as an act in furtherance of a conspiracy and the allegation of a false arrest clearly alleges a deprivation of a constitutional right. Elements one and two present a closer question. A part of element two is clearly satisfied by the allegation of class-based discrimination against an individual with a disability, here a minor with autism. But, whether there was a conspiracy and that conspiracy’s purpose is not sufficiently stated in Plaintiff’s Complaint. Plaintiff’s only allegation concerning the content of the conspiracy was that “[t]he actions of Melleby and Tull constituted a conspiracy to violate the civil rights of Plaintiff.” (Pl.’s Compl. ¶ 91.) As a court in this District has previously stated: “It is not enough, however, for a plaintiff to make privileges under the laws.”). merely broad or conclusory allegations concerning the existence of . . . a conspiracy . . . . Rather, plaintiffs must allege with sufficient particularity that the [defendants] reached some understanding or agreement, or plotted, planned and conspired together, to deprive plaintiffs of a federal right.” Hauptmann v. Wilentz, 570 F. Supp. 351, 375 (D.N.J. 1983) (quoting Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 539 (E.D. Pa. 1982)). There is no allegation, conclusory or otherwise, that Defendants (1) came to an agreement or (2) what constituted the agreement.6 Accordingly, the Court will dismiss the § 1985(3) claim, without prejudice. Plaintiff may move for leave to amend his complaint to remedy this deficiency at an appropriate time. iii. The ADA Claim Defendants argue a lack of state action also compels the Court to dismiss Plaintiff’s ADA claim. More specifically, Defendants argument is that the case law supporting dismissal of the § 1983 claims supports dismissal of this ADA claim. Plaintiff does not directly rebut this argument, but instead focuses on how his Complaint has adequately pled the elements of an ADA claim. Plaintiff indirectly counters Defendants’ 6 The Court notes Plaintiff states in his opposition brief that “Defendants agreed to remove Plaintiff from school by means of making a false report to the police.” (Pl.’s Opp’n Br. 7.) Plaintiff does not provide citation to where this assertion resides in his Complaint, and upon review, the Court does not find this allegation to be part of Plaintiff’s Complaint. argument by asserting Defendants were involved in Plaintiff’s false arrest. First, the Court will address Defendants analogy to § 1983’s “state action” requirement. The ADA does not contain a “state action” requirement analogous to § 1983. While it does require that a “public entity” – a statutorily defined term which Defendants do not dispute is applicable to them – engage in the discrimination, Defendants have cited no case which would limit which actions fall within the purview of the ADA. In fact, whereas § 1983 has various judicially-created doctrines restricting its application, “the ADA is deliberately broad.” Haberle v. Troxell, 885 F.3d 171 , 179 (3d Cir. 2018). In fact, the Third Circuit stated “[t]he ‘subjected to discrimination’ phrase in Title II is ‘a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context.’” Id. at 180 . The Court will not dismiss the ADA claim here on these grounds. Second, the Court will address what appears to be a corollary of Defendants argument: because Defendants were not involved in the arrest of Plaintiff, they cannot be liable under the ADA. It does not appear that Plaintiff alleges Defendants actually brought Plaintiff to the ground, cuffed, search, and detained him. Plaintiff alleges Defendants made a false statement to the VPD which prompted these actions. While an argument could be made that a true statement – whatever the contents of that statement may be – would have led to the same action by police, Defendants’ argument here on causation is deficient. The Court must make all reasonable inferences in favor of Plaintiff.7 Doing so here requires the Court to find that Defendants were part of the causal chain, because that is what has been plausibly alleged. Accordingly, the Court will not dismiss Plaintiff’s ADA claim against Defendants. c. The State Law Tort Claims Defendants argue Plaintiff’s state law tort claims (common law false arrest, IIED, and NIED claims) must be dismissed as a matter of law because they are barred by the New Jersey Tort Claims Act (“NJTCA”). Defendants argue there are two reasons these causes of actions are barred by the NJTCA: (1) Plaintiff has not filed a notice of claim or requested permission to file a late notice of claim and (2) Plaintiff’s injury does not meet the so-called “verbal threshold.” Plaintiff does not offer any argument in opposition. Nonetheless, the Court will consider the merits of Defendants two arguments. Under New Jersey law, “[n]o action shall be brought against a public entity or public employee . . . unless the claim upon 7 As with the argument concerning the Heck doctrine, the argument Defendants make concerning a breach in the chain of causation because Plaintiff pled guilty cannot be considered as it is not properly before the Court. which it is based shall have been presented in accordance with the procedure set forth” within the NJTCA.8 N.J. STAT. ANN. § 59:8-3. The procedure requires, in relevant part, the following: A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if: a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9[.] N.J. STAT. ANN. § 59:8-8. As is made clear by the NJTCA, failure to file a notice of claim within ninety days of accrual of a claim bars a plaintiff from bringing a tort claim against public entities or employees in court. Here, Defendants are correct: Plaintiff has provided no indication in his Complaint that he filed a notice of claim, much less within the statutorily prescribed period of ninety days. Defendants are also correct that Plaintiff does not qualify for the narrow exception to the bar previously discussed. This Court, in its discretion, may allow a claimant to file a late 8 Because Defendants are either county entities or county employees, it appears they would properly be considered public entities or employees. notice within one year after the accrual of the cause of action. N.J. STAT. ANN. § 59:8-9. But, this may only be done when (1) the public entity or employee has not been substantially prejudiced and (2) the claimant has submitted affidavits that prove extraordinary circumstances relating to claimant’s failure to file.2 N.J. STAT. ANN. § 59:8-8. If the one-year limit has passed, a court is without discretion to allow late notice. Davis v. Twp. of Paulsboro, 371 F. Supp. 2d 611, 618 (D.N.J. 2005). Even assuming Plaintiff meets the above two elements and less than a year has elapsed, Plaintiff has made no application to the Court. Therefore, the Court may not grant Plaintiff permission to file a late notice of claim. Furthermore, in order to properly state an NIED or IIED claim, a “verbal threshold” must be met under the NJTCA, which provides: No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00. R.K. v. Y.A.L.E. Sch. Inc., No. 07-5918, 2009 WL 1066125 , at *3 (D.N.J. Apr. 20, 2009) (citing N.J. STAT. ANN. § 59:9–2(d)). 2 This Court has the discretion to permit late filings of torts within one year after accrual. See Webster v. Rutgers- N. J. Med. Sch., No. 15-08689, 2017 WL 3399996 , at *3 (D.N.J. Aug. 4, 2017). Humiliation, anguish, mental pain, depression, and emotional distress, are only considered “pain and suffering,” which categorically do not meet the verbal threshold. See Gretzula v. Camden Cty. Tech. Sch. Bd. Of Educ., 965 F. Supp. 2d 478, 490 (D.N.J. 2013) (stating a school board employee’s IIED claim of mental anguish and emotional distress was barred); PBA Local No. 38 v. Woodbridge Police Dept., 832 F. Supp. 808, 821 (D.N.J. 1993) (finding injuries consisting of humiliation, mental pain and anguish “fall within the purview of pain and suffering”); Mercado v. State, 515 A.2d 804, 808 (N.J. Super. Ct. Law. Div. 1985) (“[E]motional stress, distress, anxiety, and embarrassment . . . provide no basis for recovery . . . under the Tort Claims Act.”). The Court finds Plaintiff’s Complaint fails to provide any allegations concerning permanent injury that would meet the verbal threshold. Moreover, there are no allegations concerning any medical treatment, if any, Plaintiff required as a result of the incidents involved in this case. Therefore, the tort claims found at Counts V, VI, and VII will be dismissed. D. Motion to Amend Standard Pursuant to Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only with the opposing party's written consent or the court’s leave.” Rule 15(a)(2) further “requires that leave to amend the pleadings be granted freely ‘when justice so requires.’” Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (citing FED. R. CIV. P. 15(a)) (“We have held that motions to amend pleadings should be liberally granted.”). Thus, “absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless denial [can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (internal quotations, citations, and emphasis omitted); see also Haynes v. Moore, 405 F. App’x 562, 564 (3d Cir. 2011) (noting that even though leave to amend under Rule 15 should be freely given, “a district court may exercise its discretion and deny leave to amend on the basis of undue delay, bad faith, dilatory motive, prejudice, or futility.”). It is under this standard that the Court considers Plaintiff’s Amended Motion to Amend. E. Plaintiff’s Amended Motion to Amend Plaintiff has also cross-moved for leave to amend its Complaint. Before considering the merits of the motion, the Court must briefly discuss the relevant procedural history. On November 30, 2018, Defendants filed their Motion to Dismiss, which was discussed supra. On January 15, 2019, Plaintiff filed his opposition brief and then separately filed the Motion to Amend. The Motion to Amend requested leave to amend to include “relief for attorney fees [sic] sought in damages as to Counts I-IV and Counts IX-XI.” (Pl.’s Mot. to Am. 1.) On January 28, 2019, Defendants filed a consolidated reply brief and opposition to Plaintiff’s Motion to Amend. On February 12, 2019, Plaintiff’s counsel, Mr. Georgios Farmakis, filed a letter on the docket stating that the Motion to Amend included a proposed amended complaint that was an “attorney-work product draft, and not the actual proposed Amended Complaint.” (Pl.’s Feb. 12, 2019 Letter 1.) In response, this Court entered a Text Order directing Plaintiff to file an amended cross-motion to amend and allowing Plaintiff to pursue whatever relief necessary to remedy the inadvertent disclosure of attorney work product. On March 25, 2019, Plaintiff filed his Amended Motion to Amend and on April 22, 2019, Defendants filed their opposition. In his April 29, 2019 reply brief, Plaintiff requests the Court disregard the Motion to Amend and only consider the Amended Motion to Amend. Based on this procedural history and Plaintiff’s concession, the Court will deny, without prejudice, Plaintiff’s Motion to Amend and will only consider Plaintiff’s Amended Motion to Amend.9 9 The Court notes that Defendants object to Plaintiff’s first Cross-Motion to Amend under Local Rule of Civil Procedure 7.1(h) because Plaintiff filed two briefs instead of a combined brief. Although technically not in the form demanded by Rule 7.1(h), the briefs do not exceed the page limit and were filed on the same day so as to meet the substantive requirements of the rule. Plaintiff’s Amended Motion to Amend requests – on its face – the same relief as requested previously: leave to file an Amended Complaint which includes a request for attorneys’ fees as to Counts I-IV and IX-X. Defendants’ opposition shows, however, that other relief has been added to the proposed Amended Complaint that is not explicated in the Amended Motion to Amend. Defendants cite the following undisclosed additions to Plaintiff’s proposed Amended Complaint: • A request for “[i]njunctive relief for an order requiring Plaintiff to immediately return to the High School” under Count I (Pl.’s Proposed Am. Compl. ¶ 84.b.); • A request for “actual damages” and a removal of the request for “[i]njunctive relief for an order requiring Defendants to design an IEP for Plaintiff” under Count X (Pl.’s Proposed Am. Compl. ¶ 129.b.; Pl.’s Compl. ¶ 129.b.). Defendants argue the addition of these undisclosed amendments “suggest inappropriate motives.” (Defs.’ Reply Br. 2.) Plaintiff argues Defendants case law is inapplicable and there is no inappropriate motive. Plaintiff is reminded to follow the Federal and Local Rules of Civil Procedure in all filings before the Court. The Court also notes for the record that Defendants objection to Plaintiff’s addition of an New Jersey Law Against Discrimination (“NJLAD”) claim in the Motion to Amend is now moot. Since the Amended Motion to Amend does not contain an NJLAD claim, this argument need not be addressed by the Court. Based on this Court’s decision on Defendants’ Motion to Dismiss, any proposed amendments to Counts I, II, or III will be denied, without prejudice as those claims have been dismissed, without prejudice. Therefore, Defendants’ argument as to the undisclosed addition to Count I is moot. The addition of attorneys’ fees as to Counts IV, IX, and X will be granted, as the Rule 15 standard advises that amendments shall be freely given and these additions were specifically requested. Remaining is Plaintiff’s addition of a request for actual damages and removal of a request for injunctive relief under Count X. That relief will not be granted because Plaintiff has not requested it. Plaintiff’s Amended Motion to Amend does not request an addition or deletion in this respect, but rather is confined to the issue of attorneys’ fees. It is axiomatic that the Court cannot grant relief which is not requested. Plaintiff, if he so desires, may move at an appropriate date to amend his Amended Complaint in this respect if he wishes to do so. Accordingly, Plaintiff will be directed to file an Amended Complaint within a specified period of time as directed by this Court’s Order. The Amended Complaint should excise any claims which have been dismissed by this Court and should only add the attorneys’ fees requests that were expressly granted by this Court. CONCLUSION For the reasons set forth in this Opinion, Defendants’ Motion to Dismiss will be granted, in part, and denied, in part. Plaintiff’s Motion to Amend will be denied, without prejudice. Plaintiff’s Amended Motion to Amend will be granted, in part, and denied, in part, without prejudice. An appropriate Order will be entered. Date: August 28, 2019 s/ Noel L. Hillman At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.