Surina v. S. River Bd. of Educ.
| Decision Date | 30 July 2018 |
| Docket Number | Civil Action No.: 17-2173 (FLW) (TJB) |
| Parties | TRICIA SURINA and JAMES D. SURINA, Plaintiffs, v. SOUTH RIVER BOARD OF EDUCATION, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
*NOT FOR PUBLICATION*
Plaintiffs Tricia and James Surina (collectively, "Plaintiffs") are parents of A.S., who is an autistic child; they brought this § 1983 action against various State and District Defendants.1 Plaintiffs allege that District Defendants violated Plaintiffs' constitutional rights by engaging in sham investigations of child abuse and neglect, and that Defendants retaliated against Plaintiffs for exercising their First Amendment rights to advocate for their disabled child. In addition to these federal claims, Plaintiffs also bring parallel state claims against the District Defendants under the New Jersey Civil Rights Act, and a claim for intentional infliction of emotional distress. Plaintiffs also bring one count against State Defendants under § 1983 for violations ofthe Fourth, Fifth, and Fourteenth Amendments for allowing DCPP workers to commit abuse of process against Plaintiffs.2 The State Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), claiming sovereign immunity, and District Defendants also separately move to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiffs have not stated any claims upon which relief can be granted.3
For the following reasons, State Defendants' Motion to Dismiss is granted, and Count III is, consequently, dismissed with prejudice. District Defendants' Motions to Dismiss are granted with prejudice as to Count I and Count V, and without prejudice as to Count II and Count IV. Plaintiffs may amend their Complaint, consistent with this Opinion, as to Counts II and IV, within twenty (20) days of this Opinion. If Plaintiffs wish to assert a Monell claim against South River, they may do so at that time.
Plaintiffs are residents of the Borough of South River, Middlesex County, New Jersey and are the legal and biological parents of A.S., an autistic child attending school at South River. Compl. at ¶ 4. A.S. has a severe expressive and receptive language disorder. Id. The named Defendants include both District Defendants and State Defendants. Id. at ¶¶ 5-15.
The dispute between the parties dates back to early 2015. After A.S. transferred to South River, Plaintiffs entered into an agreement with the District to meet A.S.'s special educational needs, Id. at ¶ 103, but from early 2015 through 2016, numerous ongoing disputes arose between the parties concerning the needs and well-being of A.S. See id. at ¶¶ 18-127.4
In particular, the Complaint alleges that the problems between the parties began on March 30, 2015, when Mrs. Surina received a phone call from District Defendants, Mr. Sherman and Ms. Pribyl, informing her that two of her son's classmates had reported that her son was mistreated by his 1:1 aide. Id. at ¶ 18. After Mrs. Surina requested an incident report on the mistreatment, Mr. Sherman left a message for Mrs. Surina informing her that the DCPP did not require him to make any reports, and that, therefore, no reports were or would be made. Id at ¶ 19. Nonetheless, a few weeks later, a South River Policeman was able to retrieve an incident report for Mrs. Surina, which was dated March 31, 2015 at 8:41 A.M., approximately four hours before Principal Sherman left Mrs. Surina the message. Id. at ¶ 24.
On April 29, 2015, Mrs. Surina sought to observe her child in school, but was "unable to secure classroom observation times." Id. at ¶ 25. Thereafter, she took a walk on the public sidewalk adjacent to the school playground during her son's recess period. Id. at ¶ 26. Whilelooking for her son, a recess aide yelled Id. at ¶ 27. Mrs. Surina returned home and called the South River Police Department to file a harassment complaint against the unknown recess aide. Id. at ¶ 28. A police officer, Patrolman Sullivan, arrived at Mrs. Surina's home and began to take her statement, but was soon joined by Sergeant Kevin Nielsen, who began questioning Mrs. Surina about why she was walking on the sidewalk near the school playground. Id. at ¶ 29. Neilsen then returned to the school and wrote a Suspicious Person Complaint against Mrs. Surina "on behalf of Principal Sherman." Id. at ¶ 31. The report stated Mrs. Surina was on the public sidewalk looking at the children, and that Principal Sherman "was concerned for the safety of the children." Id. at ¶ 32.
During the winter, spring, and summer of 2015, South River reached a verbal agreement with Mrs. Surina permitting her to drop A.S. off and pick him up at the side entrance of the school and allowing his 1:1 teacher to escort him inside. Id. at ¶ 37. A.S. had scored in the fifth percentile for personal safety cognition, which necessitated him having an adult with him at all times. Id. at ¶38. After reaching this agreement with the District, Mrs. Surina also requested an Independent Educational Evaluation. When the District failed to respond to her, she filed a complaint with The New Jersey Office Of Special Education Programs. Id. at ¶40. That fall, however, Plaintiffs allege that Principal Sherman informed Mrs. Surina that the District was no longer providing her any special privileges to drop her son off in the rear of the school. Id. at ¶ 41.
Plaintiffs' claims primarily stem from an incident in March 2016 that Plaintiffs call "retaliation" for their involvement in these disputes. That month, A.S. was absent from school for a period of time, and Ms. Pribyl and Ms. Delatorre, the case manager, met with the schoolattendance officer, Ms. Widman, and instructed her to send a truant officer to the Surina home "to get more information about [A.S.'s] illness." Id. at ¶ 43. On March 21, 2016, the truant officer visited the home even though Mrs. Surina, that morning, "had faxed a signed Doctor's Excusal From School note to Ms. Widman." Id. at ¶ 42. Ms. Delatorre stated in her recorded report to DCPP and the South River Police Department that the school had received doctors' notes excusing the child from school due to illness, but stated that she did not like the fact that the doctors worked for a medical clinic, the notes had no diagnosis, and Mrs. Surina did not take him to his usual Pediatrician. Id. at ¶ 71. Ms. Delatorre also reported that A.S. had hygiene issues, including dirty hair, body odor, and wore the same pants three days in a row, and alleged that Mrs. Surina made her son bathe in scalding water. Id. at ¶ 72.5 Two days after the truant officer's visit, Mrs. Surina submitted a "Request To Enforce A Court Order" to the New Jersey Office Of Special Education Programs and Mr. Pfister. Id. at ¶ 44.
On March 24, 2016, at approximately 4:15 P.M., Mrs. Delatorre, after speaking with Mr. Pfister and Mr. Sherman, issued a report to DCPP and the South River Police Department stating that Mr. and Mrs. Surina's son was missing and neglected. Id. at ¶ 45. At 4:30 P.M. that day, Patrolman Matthew Eitel arrived at the Surina home and informed Mrs. Surina that he had received a call stating that her son was "missing." Id. at ¶ 45. Mrs. Surina informed the officer that her son was sick and in bed. Id. Officer Eitel and Mrs. Surina were soon joined by Patrolman Christopher Monek, who informed them that he was there to perform a welfare check at the request of DCPP. Id. at ¶ 47. After showing the patrolmen the doctor's note, Mrs. Surina brought A.S. to the door, where the patrolmen were waiting, in order to show them he "was not missingand was well cared for." Id. at ¶ 48. Apparently satisfied, the patrolmen called DCPP to inform them that A.S. was home sick. Id. at ¶ 50. Donna Thasher, South River Police Department operator, memorialized the call, writing: Id. at ¶ 52.
Later that day, after the two patrolmen had departed, Mrs. Surina received another visit from South River authorities. At 7:30 P.M., Officer Waranowicz, from the South River Police Department, and two DCPP investigators arrived at the Surina home. Id. at ¶ 53. Officer Waranowicz informed Mrs. Surina that a report was made that her child was missing and he was there to provide assistance to the DCPP workers. Id. Plaintiffs allege that Officer Waranowicz then demanded that Mrs. Surina allow him and the DCPP investigators into her home. Id. at ¶ 54. Mrs. Surina asked the officer if he had a warrant, and Officer Waronowicz responded that he did not need a warrant to see if a child was missing. Id. at ¶ 55. Mrs. Surina told him that "two officers were at her home earlier and saw that her son was not missing and in good health and that they were going to inform DCP[ ]P of those facts." Id. at ¶ 56. The DCPP investigators stated that they received the message from the two officers but they, nonetheless, had to conduct a follow-up investigation. Id. at ¶ 57. Mrs. Surina asked them if they had an order to investigate, and they claimed they did not need one because "a child might be missing and in danger." Id. at ¶ 58.
After Mrs. Surina closed the interior door, Officer Waranowicz then began banging on the door and again "demanded entrance into her home for himself and the DCP[ ]P workers." Id. at ¶ 60. Mrs. Surina alleges that she "suddenly felt dizzy and relented to letting the DCP[ ]P workers inside," but stated that the officer had to remain outside. Id. at ¶ 61. Officer Waranowicznonetheless entered the home, and the DCPP case workers told Mrs. Surina that it was policy to have the police accompany them. Id. at ¶62. The case workers then stated that the "real reason...
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