George Ross, Sr. v. Greater Egg Harbor Regional Hi ( 2016 )


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  •                                                             NOT PRECEDENTIAL
    
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________
    
                                     No. 15-2662
    
    
          GEORGE ANDREW ROSS, SR.; ANGELA ROSS, individually and as
            Guardians Ad Litem for infant George Andrews Ross II, an infant,
    
                                                                Appellants
    
                                           v.
    
           BOARD OF EDUCATION GREATER EGG HARBOR REGIONAL
     HIGH SCHOOL DISTRICT; MR. ROCKMAN; MICHAEL WILBRAHAM; BRIANA
    FORBEY; DIAMOND PILGRIM; GALLOWAY TOWNSHIP POLICE DEPT.; KEVIN
      JORGENSEN; JOHN DOE I THROUGH JOHN DOE XII, Fictitious Names J/S/A;
           GREATER EGG HARBOR REGIONAL HIGH SCHOOL DISTRICT;
                    DONALD PILGRIM; DYNASTY PILGRIM
                             ________________
    
                      Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Civil Action No. 1-11-cv-06490)
                       District Judge: Honorable Noel L. Hillman
    
    
                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 16, 2016
    
          Before: AMBRO, NYGAARD, and VAN ANTWERPEN, Circuit Judges
    
                             (Opinion filed: July 12, 2016)
                                          ________________
    
                                              OPINION *
                                          ________________
    
    AMBRO, Circuit Judge
    
           Plaintiffs George Andrew Ross Sr., Angela Ross, and George Andrew Ross II
    
    appeal from the District Court’s grant of summary judgment in favor of Defendants. For
    
    the reasons that follow, we affirm.
    
                                                  I.
    
           George Andrew Ross II was a sophomore at Absegami High School in Galloway
    
    Township, New Jersey. On the morning of March 30, 2009, Ross got into a physical
    
    confrontation with a senior, Donald Pilgrim. Apparently Pilgrim spoke “fighting words”
    
    to Ross in a school hallway over Ross’s then-girlfriend, Briana Forbey. Pilgrim and Ross
    
    began to fight, with Ross claiming that Pilgrim was the initial aggressor. Earnest
    
    Rockelman, a teacher, broke up the fight. Ross then left the scene (there is some dispute
    
    over whether Rockelman told Ross to stay put) and Michael Wilbraham, a vice-principal,
    
    escorted Pilgrim to the principal’s office.
    
           Minutes after the first fight, Ross ran into Pilgrim’s two sisters, Diamond and
    
    Dynasty Pilgrim, in another school hallway. The Pilgrim sisters began to taunt Ross and
    
    words escalated to punches. At this point, Donald Pilgrim managed to break free from
    
    Wilbraham’s grasp and ran toward the scene of the second fight. Donald Pilgrim
    
    
    
    *
     This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    
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    punched Ross in the face and all three of the Pilgrim siblings proceeded to kick Ross
    
    while he was laying on the ground. School staff members, along with Officer Kevin
    
    Jorgensen, the school’s resource officer, arrived and broke up the second fight. Ross
    
    suffered a fractured eye socket and bruises and cuts to his face and body.
    
           The Pilgrims were charged with aggravated assault and harassment. They pleaded
    
    guilty and were ordered to pay Ross restitution. Ross was charged with simple assault
    
    and disorderly conduct. These charges were dismissed after the school chose not to
    
    pursue them. The school suspended all of the students involved in the fight, with Ross
    
    serving a nine day out-of-school suspension.
    
           Ross’s parents filed suit in state court on their son’s behalf, naming as Defendants
    
    the Greater Egg Harbor Regional High School District, Rockelman, Wilbraham, and
    
    Officer Jorgensen. 1 Defendants removed the case to federal court. After discovery, they
    
    moved for summary judgment and the District Court granted the motion. The complaint
    
    contained constitutional, contract, and tort claims, but in essence the family alleged that
    
    Defendants: (1) negligently failed to protect Ross from the fight; (2) imposed an
    
    unjustified school suspension; (3) sought criminal charges against Ross out of malice;
    
    and (4) defamed Ross. The District Court found all of these claims meritless and
    
    unsupported by the record.
    
    
    
    1
      The Ross family also named the Pilgrims and Forbey as Defendants. These Defendants
    did not appear in the litigation and the District Court dismissed without prejudice all
    claims against them because the Ross family either failed to serve them with a copy of
    the complaint or failed to prosecute the claims. The family has not challenged this result
    on appeal.
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                                                 II.
    
           The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
    
    jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s grant of summary
    
    judgment is plenary. Chavarriaga v. New Jersey Dept. of Corr., 
    806 F.3d 210
    , 218 (3d
    
    Cir. 2015) (citation omitted).
    
                                                 III.
    
           Beginning with the negligence claim, we agree with the District Court that
    
    Defendants did not owe Ross a duty of care to protect him from the dangers of a physical
    
    altercation with the Pilgrims. The existence of a duty of care under New Jersey law is a
    
    question for the court. Jerkins ex rel. Jerkins v. Anderson, 
    922 A.2d 1279
    , 1284 (N.J.
    
    2007). Educators have a duty to protect “children in their charge from foreseeable
    
    dangers, whether those dangers arise from the careless acts or intentional transgressions
    
    of others.” Id. at 1285 (quoting L.W. v. Toms River Reg’l Schs. Bd. of Educ., 
    915 A.2d 535
    , 550 (N.J. 2007)) (emphasis added) (internal quotation marks omitted). As the Court
    
    noted, the danger in this case was not foreseeable to Defendants because Ross had no
    
    prior relevant history with the Pilgrims, who had a limited disciplinary record for
    
    fighting. The Ross family claims that the first fight should have made the second fight
    
    foreseeable. But Ross voluntarily left the scene after the first fight and it is undisputed
    
    that Defendants were not present when the second fight started. In these circumstances,
    
    the second fight was not a foreseeable consequence of anything Defendants did (or failed
    
    to do) that day.
    
    
    
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           We also agree with the District Court that Defendants acted within their discretion
    
    in suspending Ross for nine days. Absegami High School had a zero tolerance policy of
    
    no physical contact between students, and it is undisputed that Ross violated that policy
    
    by fighting with Donald Pilgrim. The family nonetheless claims that the suspension
    
    violated a dizzying array of constitutional rights, including the First, Fourth, and Fifth
    
    Amendments to the U.S. Constitution and the right to attend public school under the New
    
    Jersey Constitution. It is unclear whether each of these constitutional claims was
    
    properly presented to the District Court. We are content to say, however, that any claims
    
    based on the suspension are unpersuasive because the suspension was justified under
    
    school policy and there is no evidence that Defendants failed to follow the state law
    
    procedures for imposing a suspension. See N.J. Admin. Code § 6A:16-7.2.
    
           Next, we conclude that the District Court was right to deny the malicious-
    
    prosecution and abuse-of-process claims related to the criminal charges. Ross was
    
    charged with simple assault and disorderly conduct, but the charges were later dismissed.
    
    A malicious-prosecution or abuse-of-process claim requires, among other things, that the
    
    decision to pursue charges was motivated by malice and that there was an absence of
    
    probable cause to prosecute. LoBiondo v. Schwartz, 
    970 A.2d 1007
    , 1022 (N.J. 2009).
    
    The Ross family has failed to produce any evidence of malice, and the undisputed facts
    
    support a finding of probable cause because Ross admitted to getting into a fight with
    
    Pilgrim.
    
           Finally, summary judgment was warranted on the defamation claim because the
    
    family failed to identify the particular statement Defendants made that was allegedly
    
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    defamatory. See DeAngelis v. Hill, 
    847 A.2d 1261
    , 1267-68 (N.J. 2004) (“[T]he elements
    
    of a defamation claim are: (1) the assertion of a false and defamatory statement
    
    concerning another; (2) the unprivileged publication of that statement to a third party; and
    
    (3) fault amounting at least to negligence by the publisher.”) (citation omitted). To the
    
    extent the family is arguing that the suspension and criminal charges count as defamatory
    
    statements, there is no evidence that Defendants made any false representations in
    
    suspending Ross or by initially pursuing criminal charges. 2
    
                                        *   *    *   *    *
    
           For these reasons, we concur with the well-reasoned decision of the District Court
    
    and affirm its judgment.
    
    
    
    
    2
      Having concluded that summary judgment was appropriate on all claims, we need not
    address the remaining arguments on appeal. These include questions of immunity under
    the New Jersey Tort Claims Act and the School District’s liability for the actions of its
    employees, as well as the availability of economic damages and attorney’s fees and costs.
    
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