Cummerlander v. Patriot Preparatory Acad. Inc.

• Decision Date: 09 February 2015
• Docket Number: Case No. 2:13–CV–0329.
• Citation: 86 F.Supp.3d 808
• Parties: Phyllis CUMMERLANDER, et al., Plaintiffs, v. PATRIOT PREPARATORY ACADEMY INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

86 F.Supp.3d 808

Phyllis CUMMERLANDER, et al., Plaintiffs

v.PATRIOT PREPARATORY ACADEMY INC., et al., Defendants.

Case No. 2:13–CV–0329.

United States District Court, S.D. Ohio, Eastern Division.

Signed Feb. 9, 2015.

Joseph Semmer Tann, Jr., Evanston, IL, for Plaintiffs.

D. Wesley Newhouse, II, Christopher E. Hogan, Newhouse, Prophater, Kolman & Hogan, LLC, Columbus, OH, for Defendants.

OPINION & ORDER

ALGENON L. MARBLEY, District Judge.

This matter comes before the Court on Motion of Defendants Patriot Preparatory Academy (“Academy”), Sean Smith, Charles Kabealo, Pamela Gould, H. David McIIrath, and C.P., a minor by and through his natural and custodial parent, Christian Penn, Sr. (collectively “Plaintiffs”) for Summary Judgment on all counts in Plaintiffs' complaint. Plaintiffs Phyllis Cummerlander and J.T. Cummerlander (“JT”) (collectively “Plaintiffs”) bring this suit under 42 U.S.C. § 1983, alleging the Academy, severally or jointly with Defendants, violated JT's Fourth Amendment right by subjecting him to a urinalysis drug screening under threat of expulsion on April 20, 2012, and civil conspiracy related to the alleged violation of JT's Fourth Amendment right. Plaintiffs also allege the state law claims of interference with and/or destruction of evidence, defamation, civil conspiracy brought under 42 U.S.C. § 1983, loss of filial consortium, and punitive damages. For the reasons set forth herein, Defendants' motion is DENIED in part, and GRANTED in part.

I. BACKGROUND

A. Factual Background

This civil rights and tort action arises from a urinalysis drug screening of an Academy Student, JT, conducted under the discretion of Academy's Principal, Sean Smith, on April 20, 2012. Academy is an Ohio Community School, otherwise known as a charter school, established under R.C. Chapter 3314, which serves approximately 585 students in grades K–12. As a community school, Academy operates independently of any school district and under contract with an authorized sponsoring entity that is established by statute or approved by the State Board of Education. Any student eligible to attend public school in the State of Ohio is eligible to attend a community school.

Plaintiff JT enrolled in the eighth grade at Defendant Academy in 2012. JT's school day began in his homeroom, taught by Mr. Kabealo. At the Academy, the school day always began with a 5–10 minute homeroom, in which students from the same grade gathered to receive announcements and the homeroom teacher took attendance. Students were generally free to interact with each other during homeroom.

The written policy concerning drug testing in the Academy's student handbook, which Cummerlander signed, states:

Expulsion: A student may be expelled because of excessive detention penalties or for other serious problems. For example, a student may be expelled if involved in the following, at or away from school, year round ... Drug Testing: the school has the right to demand a drug test (at the parent's expense) if rumors are circulating about a particular student. The refusal to submit to a drug test at the request of the administration automatically results in the student's removal from the school.

1. Kabealo's Homeroom on April 20, 2012

On the morning of April 20, 2012, Defendant Kabealo allegedly heard students in his homeroom discussing the fact that it was national marijuana day. Kabealo states that during this discussion, Plaintiff JT entered the class, and Defendant Kabealo heard JT state that he had “smoked one this morning.” Kabealo further alleges that he heard another student, CP, respond, “really?” Kabealo states that he then observed JT nod affirmatively and sit down. Kabealo attests that nothing in the interchange caused him to conclude that the conversation was in jest.

Defendants allege that homeroom ended, and JT went to his first period class. Kabealo, trained in the philosophy of “see something, say something,” reported to Smith what he allegedly had heard JT say. Smith asked Kabealo whether he thought JT was joking, to which Kabealo responded, “no.” Smith told Kabealo that he would look into the matter, and Defendants state that Kabealo had no further involvement in the matter, nor did he ever discuss the matter again with JT. Smith does not state that he asked Kabealo any other questions during that exchange.

After speaking with Kabealo concerning JT's alleged statement, Smith then spoke to the student, CP. Smith states CP confirmed Kabealo's version of events. CP's first set of interrogatories, dated March 22, 2014, corroborate that CP told Smith that he had heard JT state that JT had smoked marijuana that morning. (Doc. 84–5 at 2). Defendant Smith does not state that he asked CP any questions except whether he had heard JT's particular statement. Smith did not speak to any other students who may have been sitting with or near JT concerning JT's alleged statement, nor did he perform any further investigation. Plaintiffs allege that CP told Mr. Smith that he did not hear JT say “I smoked one this morning.”

JT has a different version of the events. JT states that on the morning of April 20, 2012, he walked into Kabealo's homeroom and everyone was seated already. (Doc. 84, Attachment 4 at 17). He sat down at his seat in the back of the classroom near a student named Tayvion. Id. JT observed that the other part of the class was talking about “something like marijuana” near the front of the class. Kabealo was sitting in front of the class. Id. at 17–18. JT states that he was not discussing marijuana, but boxing, with Tayvion. While JT was discussing boxing with Tayvion, JT states that another student named Nicholas asked him if he knew that it was marijuana day. JT responded, “I don't know. Marijuana is not a part of my life so I don't recall—I don't care for that.” Id. at 18. The other students around him proceeded to discuss marijuana day. Id. Cummerlander states in an affidavit that she had a telephone conversation with CP on July 29, 2013, and that CP stated in that conversation that: (1) he did not hear JT state that he had smoked marijuana on April 20, 2012; (2) Smith was present in the Kabealo homeroom on April 20, 2012; and (3) when asked by Smith in his office on April 20, 2012 whether JT smoked and/or possessed marijuana, he said no to each of these questions. (Doc. 89–2). In CP's December 9, 2013 deposition, however, he stated that he did not remember anything concerning the April 20, 2012 incident. (Doc. 84–1).

JT states that Smith entered the homeroom while it was still in session, and that Smith had a verbal exchange with Kabealo, and remained there when homeroom period ended and JT went to his first period class. JT states that after being in his first period for 15 minutes, Defendant Smith retrieved him from class.

2. Smith's Office

In his office, Smith shared with JT the information he had allegedly received from Kabealo concerning JT's statement that he had smoked marijuana that morning, as well as CP's alleged corroboration of Kabealo's version of the events. Smith gave JT an opportunity to respond, and JT denied making the statement that he had “smoked one this morning.” According to JT, Smith then said “why don't you prove it, then.” JT asked why he would have to prove it, to which Smith stated that if he did not take the test, he would not be able to return to the Academy. At that point, JT acquiesced to the test. Smith states that he made the decision to test JT pursuant to the Academy drug testing policy. Smith states also that by his judgment, CP had no malice or reason to make something up about JT, and Kabealo is a staff member whom he trusts, so he determined that he trusted JT's denial less than the statements made by CP or JT. Smith states that he did not consider JT's demeanor when making the decision to test JT. He further states that nothing in JT's behavior or appearance was out of the ordinary; his decision to test JT for marijuana rested entirely on the statements Kabealo and CP made to him. Neither Gould nor Kabealo state they observed any signs that JT was under the influence of marijuana. Smith also states that he did not think JT had any history of substance abuse.

After JT acquiesced to the test, Smith called Cummerlander and informed her that her son had been accused of smoking marijuana, that he had acquiesced to a drug test, and requested her permission to drug test him. According to Cummerlander's deposition, she denied that JT smoked marijuana, and provided her consent, but stated that she would have JT retested regardless of any results.

Gould and Smith directed JT to a private bathroom to urinate in a cup. Gould prepared the urinalysis drug test, and it sat for some time on a shelf until it was ready. Gould and Smith reviewed the directions included in the drug test kit, and told JT that two bars would mean the test was clean, and one bar would mean he tested positive for marijuana. When the test was ready, Gould and Smith read the results and determined that two bars had shown up, but that one of them was more distinct than the other. They determined, therefore, that the test “appeared” positive for marijuana. Gould recorded her observations in a memorandum, and did not take any other actions regarding the matter.

In light of what Smith and Gould determined was a positive screen, Smith called Cummerlander to retrieve JT from the Academy. Smith communicated in a letter that JT could not return to school unless Academy received a “clean” drug screening for JT, and gave this letter to Cummerlander when she arrived. Cummerlander looked at the test results and states that she saw two lines. JT saw two lines as well. Cummerlander attempted to take the test with her, but Smith took it back from her. On Monday April 23, 2013, JT received a drug test that showed he tested negative for marijuana, and Plaintiffs advised Smith of the test results. JT returned to the Academy on Tuesday April 24, 2012.

3. Return to School on April 24, 2012

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