Zell v. Ricci

Citation957 F.3d 1
Decision Date20 April 2020
Docket Number18-1608,Nos. 18-1372,s. 18-1372
Parties Beth ZELL, individually and on behalf of K.Z., a minor; Mark Zell, individually and on behalf of K.Z., a minor, Plaintiffs/Cross-Appellees, Kelsey Zell, Plaintiff, Appellant/Cross-Appellee, v. Barry RICCI, Superintendent of Chariho Regional School District, in his official capacity; Ryan Bridgham, Dean of Students, Chariho High School, in his individual and official capacities; Laurie Weber, former Principal of Chariho High School, in her individual and official capacities; Craig Louzon, former Chair of the Chariho School Committee, in his individual and official capacities, Defendants, Appellees/Cross-Appellants, Chariho Regional School District, by and through its Superintendent, Barry Ricci; Jon Anderson, Chariho Regional School District Attorney; Chariho School Committee, by and through its Chairperson, Sylvia Stanley, in her official capacity; Rachel McGinley, in her individual capacity; Rhode Island Department of Education, by and through its Commissioner, Ken Wagner ; Ken Wagner, in his official and individual capacities; Rhode Island Council of Elementary and Secondary Education, by and through its Chair, Daniel McConaghy; Daniel P. McConaghy, in his individual and official capacities, Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Paige A. Munro-Delotto, Providence, RI, with whom Munro-Delotto Law, LLC was on brief, for appellant/cross-appellee.

Mark T. Reynolds, Providence, RI, with whom Reynolds, DeMarco & Boland, Ltd., Sara A. Rapport, Providence, RI, and Whelan Corrente & Flanders were on brief, for appellees/cross-appellants Ryan Bridgham, Laurie Weber, Craig Louzon, and Barry Ricci.

Mark T. Reynolds, Providence, RI, with whom Reynolds, DeMarco & Boland, Ltd., Sara A. Rapport, Providence, RI, Whelan Corrente & Flanders, Jon M. Anderson, and Brennan, Recupero, Cascione, Scungio, & McAllister, LLP were on brief, for appellees Chariho Regional School District, Chariho School Committee, and Jon M. Anderson.

Paul Sullivan, Sullivan Whitehead & DeLuca LLP, Providence, RI, and Anthony F. Cottone, Rhode Island Department of Education, on brief for appellees Rhode Island Council on Elementary and Secondary Education, by and through its Chair, Barbara Cottam, and Rhode Island Department of Education, by and through its Commissioner, Ken Wagner.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

High school is not without its unique challenges, this much we know; we also know that the same can be said for bringing a civil lawsuit and navigating the rigors associated with contentious litigation. Each of these dynamics comes together in the case now before us: Kelsey Zell ("Zell") appeals the United States District Court for the District of Rhode Island's dismissal of her case. Zell advanced a slew of claims against the various defendants below,1 but of the many claims dismissed, she has whittled down her appellate challenges to a select few (as we'll momentarily discuss). Also before us is the cross-appeal by the defendants who take issue with the denial of their motion for sanctions against Zell's counsel.

All told, after careful consideration of this dense record and for the reasons we will explain, we affirm the dismissal of the federal-law claims, the dismissal of the state-law negligent training/supervision claim, the motion to amend as it relates to those issues, and the denial of the motion for sanctions. But we vacate the dismissal of the state-law negligence claim.


Our factual narrative is crafted from the facts presented in the complaint's allegations, which, for purposes of our review, we accept as true and construe in the light most flattering to Zell's cause (i.e., the account that follows is not necessarily what actually happened, but rather it's what the complaint says happened). See, e.g., AER Advisors, Inc. v. Fid. Brokerage Servs., LLC, 921 F.3d 282, 283 (1st Cir. 2019) (citing Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) ). Zell's complaint says a whole lot. However, given the issues remaining on appeal, we only lay out the following details which are relevant to and provide important context for the claims now before us.

Incident, Suspension, and Immediate Aftermath

The event that served as the springboard for this litigation took place at Rhode Island's Chariho2 High School (CHS) on October 16, 2015, which was the Friday of CHS's "Spirit Week," a day historically marked by "mayhem," "increased risk for students," and "school-sponsored bad decisions," as well as "lighthearted and not-so-lighthearted bantering or even aggression." The day began as it always did, with toga-clad seniors processing into school through a shower of silly string, sprayed both by the seniors themselves and the surrounding underclassmen. Students were allegedly vandalizing lockers and throwing streamers and litter around in the hallway. And in addition to the aforementioned "lighthearted and some not-so-lighthearted bantering," there were also "shows of aggressive bantering."

In the midst of this scene, then-junior Zell was on the sidelines of the procession sporting her field hockey uniform as a display of school spirit -- like everyone else, she was "indiscriminately" spraying silly string in the air at student passers-by, and some of that silly string landed on then-senior McGinley. Then, while chatting idly with friends and with her back turned towards McGinley, Zell, out of the blue, was attacked. Using her cell phone as a weapon, McGinley sprinted towards Zell and with the "hard edge" of her phone, delivered several "hammer blows" to Zell's head. Zell fell forward, and McGinley ran away laughing.

Zell went to class in pain and confused, then was summoned to Dean Bridgham's office. Once there, Zell had "trouble comprehending" what Dean Bridgham was saying to her, but she did register that McGinley had self-reported hitting Zell. Dean Bridgham sent Zell back to class after asking her a few questions -- not about her wellbeing, though -- then she was called back down to Dean Bridgham's office a little while later, this time with Principal Weber present. The two questioned Zell, after which Dean Bridgham made an unexpected announcement. He informed Zell that she would face a one-day suspension for "fighting (or instigating a fight)" because the school had found out that she supposedly called McGinley a bitch and sprayed McGinley in the face with silly string. Same punishment to befall McGinley.

"[C]rying hysterically" due to the news of her suspension, Zell called her father, who arrived at CHS around 11:00 a.m. and immediately inquired whether anyone had evaluated his daughter for a concussion. No teacher or school official, to that point, had asked Zell about her head injury

or suggested that she be sent to the school nurse or otherwise medically evaluated, but upon Mr. Zell's questioning, school officials agreed that it "would be a good idea." Upon evaluating Zell, the school nurse quickly determined she was likely concussed, a diagnosis confirmed at the hospital later that day.

That night, Zell's parents went to the Richmond Police Department intending to file charges against McGinley for assault and battery of their daughter. An officer initially told them that McGinley would be arrested promptly that evening, but later (it's unclear when, exactly), he twice switched gears (both times without explanation): first, he said McGinley would be arrested at school by the School Resource Officer the following Monday; then, he reported that McGinley would not be arrested at all unless Zell also was arrested for disorderly conduct. The Zells were not given a satisfactory explanation for this flip, but they didn't want their daughter facing "unjustified" criminal charges, so they abandoned the criminal-charges approach and formulated a new game plan.

The Suspension Appeals

So began the Zells' challenge to the school's suspension decision. With Zell at home recovering for six days, her father first appealed to Superintendent Ricci, providing to him a detailed account of the events as told by Zell and her friends, and corroborated by the surveillance video of the incident. At first, Superintendent Ricci asked to speak with Zell, but ended up upholding the suspension without talking to her directly.

The Zells appealed Superintendent Ricci's decision to the Committee, which held a hearing (roughly four months after the incident took place), during which Attorney Anderson represented CRSD (the school district, remember) and Superintendent Ricci. In the course of the hearing, the Committee played only portions of the video of the incident and refused to consider footage of McGinley striking another student on the head with her cell phone while on a school bus. As Zell tells it, Chairperson Louzon signed the Committee's decision to uphold the suspension "without review or input," and so the suspension stood.

Still aggrieved, the Zells, now represented by counsel, appealed that decision to RIDE, where a two-day hearing ensued with over ten witnesses (all of whom were subjected to direct and cross examination), and which yielded "nearly a foot of transcripts." During that proceeding, Dean Bridgham acknowledged "there was a lack of some needed policy or some related failure by the school district to handle the situation, including [Zell]'s concussion." As for Zell's presentation, amongst her extensive submittals was "an expert witness in investigation" who gave his take on the surveillance video. Ultimately, RIDE issued a decision with "two-and-half pages" of analysis upholding the suspension, causing the Zells to take issue with such a "shockingly short" decision, which cited "to literally none of [their] evidence."

Undeterred, the Zells pressed on, appealing RIDE's decision to the Council. In so doing, the Zells submitted the full record to that point, which included the hefty transcripts, their...

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