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August 22, 2011
L.M.F.,PLAINTIFF-RESPONDENT,v.J.A.F., JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-0438-10.
Submitted May 25, 2011
Before Judges Fuentes, Ashrafi and Nugent.
The opinion of the court was delivered by FUENTES, J.A.D. Defendant J.A.F., Jr. appeals from a final restraining order (FRO) entered against him by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The trial court's decision was based on a domestic violence complaint filed by defendant's former wife, plaintiff L.M.F, alleging harassment, N.J.S.A. 2C:33-4(a), as the predicate offense for the injunctive relief sought.
On appeal, defendant argues the trial court erred in issuing the FRO because plaintiff did not present sufficient evidence to sustain the predicate offense of harassment. We agree and reverse. Giving plaintiff the benefit of all reasonable inferences from the evidence presented, and accepting as true her testimony describing the events that led to the filing of the complaint against defendant, the evidence presented to the trial court was insufficient, as a matter of law, to prove the offense of harassment as defined in N.J.S.A. 2C:33-4(a).
The parties married in 1989 and divorced in August 2006. Two children were born of the marriage - a son age 19, and a daughter age 17. The parties have joint legal custody of the children, with plaintiff being the parent of primary residence. Defendant has remarried. The incidents that gave rise to this litigation involved defendant's efforts to obtain information concerning his daughter's social and academic activities and the potential for misuse inherent in our modern technological means of communication.
At the time plaintiff filed her complaint against defendant, the parties communicated primarily through "texting," which has been defined as [t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices. [Texting, NETLINGO, www.netlingo.com/word/texting/php (last visited August 8, 2011).]
Sometime in March 2010, the parties' daughter's high school basketball team won a state championship title. The school gave a banquet to celebrate the team's achievement and invited the parents to attend. Plaintiff received her invitation by mail. According to plaintiff, she assumed defendant had received a similar invitation by mail because "his personal information is on record with the school and he has the availability to contact the athletic department directly."
Defendant did not attend the banquet because he did not receive a notification from the school. He was upset and blamed plaintiff for not notifying him directly. According to plaintiff, defendant's current wife sent her approximately four text messages about this incident on an unspecified date, between 6:50 a.m. and 9:00 a.m. "in the morning before I went to work." Plaintiff did not save these text messages and could not otherwise elaborate on the substance of these communications.
THE COURT: In terms of the text messages, I need to know two things . . . Was there cursing, was there abusive language, what was it?
PLAINTIFF: Basically, [defendant's current wife] was saying that I had an obligation, [defendant] attended all the games, and I should have told him about the event and this and that when our daughter is 17 years old and our son is 19.
The next relevant event concerned a Board of Education meeting in which the basketball team was to be recognized and honored for their achievement. On May 25, 2010, plaintiff received eight text messages between the hours of 7:32 a.m. and 8:19 a.m. from defendant's current wife. Plaintiff did not produce the messages she sent in response.*fn1 Despite this omission, the trial court admitted into evidence the following text messages sent to plaintiff by defendant's current wife:
7:32 a.m.: Where do you get off telling [defendant] where I can and cannot go? Board of Ed. meetings, why would you tell him? FYI, it's only addressed to [defendant], get over it. 7:33 a.m.: may be [the parties' daughter]'s father but he's married to me now. He left you. We can go where ever we want TOGETHER.
7:33 a.m.: And don't worry. I wasn't going anyways. Save ur breath for someone who gives a shit about what you think. 8:08 a.m.: I read the text when u told him that it was only addressed to him. So don't deny it. 8:08 a.m.: I am over myself. U r the one who needs to realize ur marriage is over and u can't tell him or me what to do or where to go 8:10 a.m.: I will. And u stop telling me where I can and can't go. 8:19 a.m.: Then stop textin [sic] me. I don't want you saying anything about me. Period. I don't like to be associated with u in any way. So stop telling me where I can go. 8:19 a.m.: And I'm glad ur happy. So are we.*fn2
The next incident of alleged texting harassment occurred on June 25, 2010. The topic of discussion on this date concerned the parties' daughter's SAT score. Defendant sent plaintiff the following eighteen text messages between the hours of 6:50 a.m. and 11:34 a.m.:
6:50 a.m.: A[n]y word on her sat score? 8:33 a.m.: A[n]y word on her sat score? 9:29 a.m.: A[n]y word on her sat score? 10:02 a.m.: Add this to the list 10:31 a.m.: Why don't you just tell me. Whats the big deal. 10:40 a.m.: By you not telling me things about our kids is proof that you are to blame for the kids acting the way view [sic] do to me. It confirms what everyone is telling Me that you are telling things to the kids that it should be between you and me. Maybe everyone should know that you screwed a[] married man had him over your house more than once. Should have etexmne [sic] when I told them you never told me about the banquet. Thought the women wer[e] going to cry. 10:41 a.m.: Now they see who you are and why the kids don't talk to me. 10:50 a.m.: You are playing this game by not telling me t[h]ings about our kids. All I ask is to let me know ionsortant timing r [sic] with our kids. And you don't. 10:51 a.m.: Example you know her score and you don't tell me. Proof. 10:56 a.m.: Proof you are holding info from me about our kids. 11:00 a.m.: Simply asking you a question about our daughter's education and you choose not to tell me. Why? 11:02 a.m.: [addressing plaintiff by her first name] what did she score 11:04 a.m.: Every body asked why didn't [plaintiff] tell you? And them she said o my god I bo so sorry [sic]. 11:06 a.m.: Can you just tell me t[h]ings about [their son] and [their daughter]. I need you[r] help with them. 11:10 a.m.: So we both don't look like ass hole parents that don't talk. Do it for [our children]. So we are not embarrassed im north [sic] 11:31 a.m.: Do you know why she won't talk to me cause it stopped the same time the emancipation. I built the chariot was planning on taking her re visit college and tiben bomb nothing [sic]. 11:34 a.m.: Put our diff aside and help me with the kids. I want to be apart me [sic] their life Plaintiff works Monday through Friday in the construction department of a municipality. She testified defendant sent these messages on a Friday and, because she usually arrives at work around 8:15 a.m., most of the text messages were sent to her during working hours. Plaintiff keeps her phone in her purse, and the purse in her desk. The phone vibrates when a message is received.
Plaintiff testified she responded to defendant's eighteen text messages "one time." She told him she didn't know the SAT score and "to contact [their daughter] directly. She is 17 years old, [and] has a cell phone." Plaintiff did not produce a copy of her response text message to defendant, or otherwise indicate to which of defendant's eighteen messages she responded. Defendant stopped texting plaintiff after she responded.
The final texting incident occurred on June 28, 2010, the Monday following the June 25, 2010 "SAT scores" event. According to plaintiff, "there was no communication over the weekend." On Monday morning, plaintiff began receiving the following text messages from defendant:
8:54 a.m.: Did you find out [their daughter's] sat score? 9:03 a.m.: [calling plaintiff by her first name] we are both legal guardians, I don't understand why you withhold in[f]o[r]mation from me. I paid half me [sic] that test.
If I don't hear from you by the end Me [sic] today june 28 2010 with her score I will inform my attorney. Its wrong what you are doing with my and kids relationship.
Consider this my last request for her sat score? 9:11 a.m.: I've had it with you ruining my relationship with our kids. 9:51 a.m.: FYI, I pay you $2,800 a month more than what you make. We pay almost $5,500 together for our kids. It's not you paying alone which you paint the picture of too. 9:51 a.m.: the kids. Don't kid yourself cause it could stop one day According to plaintiff, she called defendant and asked him to stop contacting her at work. She decided to call rather than text "because [she] thought it was [] faster." When she reached defendant on the phone, "he started to get angry and yell at me or spew at me and then said 'Everybody knows you're nothing but a fucking scorned woman' and that's when I put him on speaker and then he hung up." Plaintiff then sent defendant a text message asking him to stop contacting her. Again, plaintiff did not produce a paper copy or an electronic record of the text message she sent to defendant. Thereafter, defendant sent plaintiff two text messages at 5:00 p.m. and 5:07 p.m., inquiring about the whereabouts of their daughter.
II After the testimony concerning the predicate offense concluded, the trial court questioned plaintiff about other incidents of domestic violence she had listed on her domestic violence complaint in support of a temporary restraining order. Specifically, the court asked plaintiff to elaborate on an incident that allegedly occurred in December 2005, when the parties were in the process of finalizing their divorce:
PLAINTIFF: [Defendant] wasn't living at the residence at that time and he - the children and I were living there and he felt he could just come in and go whenever he wanted to and when he came in he said he can do whatever he wants, this is his house.
THE COURT: All right.
THE COURT: This is in the middle of the divorce?
PLAINTIFF: Yes, it is.
THE COURT: Okay. And when he said he can do whatever he wants, this is his house, where was he? Was he in your face . . . ? PLAINTIFF: In the kitchen in my face, yes. THE COURT: Okay. How close was he? PLAINTIFF: It wasn't a - it was probably five feet in front of me. It was not in my face.
THE COURT: All right. And --
PLAINTIFF: Within - out of personal space, let's say that.
THE COURT: Okay. And did he say it in a threatening manner or did he just say it matter of fact?
PLAINTIFF: Anger, just angrily. Very angry.
THE COURT: All right. And did he do anything other than say that to you? PLAINTIFF: No.
THE COURT: All right. Were you fearful? PLAINTIFF: Yes.
PLAINTIFF: The whole time during my divorce I was fearful. He was constantly threatening me and angry. He's got a very angry disposition.
THE COURT: All right. . . . Did you contact the police at that point?
PLAINTIFF: No.
THE COURT: All right. And other than saying that, did he then turn around and walk away? What happened?
PLAINTIFF: I don't remember -THE COURT: Did he park himself on the couch?
PLAINTIFF: No, he probably left because he wasn't living there. [(Emphasis added).]
The only other testimony plaintiff gave concerning prior incidents or history of domestic violence concerned "excessive texting." Plaintiff characterized the frequency of these text messages as "intermittent" and stated they "always revolve around when the children don't respond or acknowledge [defendant]." Plaintiff concluded her direct testimony with the following request from the court:
I'm just asking the Court that I want him to permanently leave me alone and stop this. We're divorced. I want to be left alone. I'm fearful at my job that I'm going to lose my job because of the constant harassment. My co-worker had to deal with this for the past four years, upsetting me mentally. I'm fearful for my mental health. I can't continue to deal with him. His behavior is erratic. I never know when the outbursts are going to happen if one of the kids don't contact him. It's quiet and then all of a sudden now I've got all these text messages coming in for two days.
On cross-examination, plaintiff indicated that, although she keeps her cell phone either in her purse or in a desk drawer while she is at work, she can hear the phone vibrate when she is seated at her desk, even if she is talking on another phone at the time.
According to defendant, for the past three years text messaging had been "the primary means of communication" between plaintiff and him. The topic of these text messages was always the children. Defendant testified this arrangement worked well until he filed a motion to reduce his child support obligation in March 2010. He also stopped receiving text messages from his children during this same time. The last time he received a text message from his daughter was in March 2010, after he sent plaintiff an "emancipation letter." The following day, his daughter sent him a text message stating "they don't have money to pay for food anymore" because defendant had not paid $400 of child support. Defendant last heard from his son in February or March 2010.
Defendant admitted to sending plaintiff the text messages on June 25 and 28, 2010. He testified, however, that plaintiff intentionally kept from him information concerning the children's lives. Plaintiff also sent him inflammatory emails intended to provoke him into sending an angry response. When defense counsel attempted to substantiate the "provocation defense" by moving into evidence emails allegedly sent by plaintiff to defendant, the court denied admission of that evidence on relevancy grounds because the emails were not dated. This ruling prompted the following exchange between the court and defense counsel:
THE COURT: But I'll hear proffer as to what the e-mails contain. Is it just the ongoing squabble between them regarding the children?
DEFENSE COUNSEL: The ongoing squabble regarding the children and my attempt to show that the plaintiff provokes the behavior of the defendant by not responding with information, but, in fact, responding with attacks.
THE COURT: Okay. But I don't think anybody disagrees that there's no communication between them or that the communication between them is unhealthy. It would be relevant if it provoked his responses on -DEFENSE COUNSEL: On those dates.
THE COURT: - the dates complained of. DEFENSE COUNSEL: And since I can't establish that -THE COURT: Yes.
DEFENSE COUNSEL: - then we're done there. [(Emphasis added).]
Based on this evidence, the court found plaintiff proved, by a preponderance of the evidence, that defendant committed the domestic violence act of harassment. The court concluded that, although there was no doubt defendant would have stopped his text messages if plaintiff had responded to his questions about their daughter's SAT score, that fact did not excuse defendant's conduct. After reciting the elements of harassment under N.J.S.A. 2C:33-4, the court stated:
I do find harassment in this matter because pursuant to subsection (a) he has communicated using offensive language through third parties and directly calling her a "fucking scorned woman" which caused her alarm enough that she had to put it on speaker phone to have somebody else witness it. Number two, he had his wife communicate using profanity, albeit only one profane statement. But, most importantly, pursuant to subsection (a), setting aside the offensively course language and also setting aside the fact that he did communicate with her at extremely inconvenient hours, choosing to send text messages to her about something that did not need to be addressed at 6:50 a.m., but he felt that need to do so, I find, most importantly, that he committed an act of harassment because he communicated with her in a manner that was likely to cause annoyance.
After citing our decision in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)*fn3 , the trial court concluded, without further elaboration, that a final restraining order should be issued against defendant.
Defendant argues the trial court erred in entering the FRO against him because the evidence did not support a finding that he committed the predicate offense of harassment. We agree.
Our standard of review of a trial court's factual findings and conclusions of law is well-settled. We are bound by the findings of the court that are supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This deferential standard is even more appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).
We will not disturb the "factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ." Rova Farms, supra, 65 N.J. at 484 (internal quotation marks and citation omitted). Our Supreme Court has also recognized that Family Part judges have "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).
With these principles as our guide, we will now address the issues presented by defendant in this appeal. N.J.S.A. 2C:33-4 defines the petty disorderly offense of harassment as follows:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Harassment is the most frequently reported predicate offense among those statutorily recognized in N.J.S.A. 2C:25-19 as a basis for a finding of domestic violence. J.D. v. M.D.F., _____ N.J. _____,_____ (2011), slip op. at 19. Despite the frequency of its use, however, harassment remains a vexing issue for the judges responsible for adjudicating domestic violence complaints in our State.
[H]arassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord.
Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application. [Ibid. (internal quotation marks and citation omitted).]
The facts presented here exemplify the complexity of human interactions and the strain they place on Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not. We conclude the evidence presented here shows only the convergence of modern technology and the foibles of human judgment. Our ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions. The ease and speed by which we transmit electronic messages has also created a commensurate expectation of an equally instantaneous response from the recipient.
Despite their decision to terminate their marriage, and in defendant's case to remarry, the parties' relationship as parents will never end. In an implicit recognition of this reality, the parties used texting as the primary means of communicating with each other concerning the welfare of their children. Both sides agreed that over the four years preceding this litigation, the subject matter of their text messages was always the children.
Given the emotional tension that seems to have remained following the divorce, texting provided an efficient means of exchanging information as parents, while avoiding the personal contact associated with a telephone call or a face-to-face encounter. The limited number of words that can be sent at any one time in a text message also minimized the risk for extraneous matters to interfere with the primary dialogue of parenting. Despite these qualities, texting is merely a tool, a means to an end. Without reasonable cooperation, texting can lead to the frustration and misuse we witness here.
By her own admission, plaintiff responded only once to defendant's eighteen text messages inquiring about their daughter's SAT scores. As the trial court found, "there is no doubt . . . that if [] plaintiff . . . simply answered [defendant's] questions about the SATs . . . he would [have] stop[ped]." Instead, plaintiff chose to ignore defendant's texts, leading him to increase the number and frequency of the messages.
Although in the realm of domestic abuse, harassment is arguably the least egregious of the offenses recognized by the Legislature as a ground for obtaining relief under the Domestic Violence Act, N.J.S.A. 2C:25-19, "there is no such thing as an act of domestic violence that is not serious." Brennan v. Orban, 145 N.J. 282, 298 (1996). What occurred here, however, was not harassment within the meaning of N.J.S.A. 2C:33-4 because the trial court did not find, and the evidence does not show, that defendant sent these text messages for the purpose of harassing plaintiff. State v. Hoffman, 149 N.J. 564, 581 (1997).
The trial court also mistakenly used the text messages on May 25, 2010, from defendant's current wife as evidence of harassing communications or a course of conduct by defendant. There is no evidence showing defendant directed his current wife to act as his proxy in this respect. The messages exchanged by these two women are a separate matter and should not have played any role in the court's determination of whether defendant committed the domestic violence act of harassment.
Plaintiff did not dispute before the trial court that defendant's only purpose in sending his text messages was to inquire about his daughter because the child had grown estranged from him. The texts became annoying to plaintiff only after she decided to ignore them. When his electronic messages were not answered, it was not unreasonable for defendant to assume he was being snubbed or ignored. He manifested his frustration by resending the same message, over and over again, in a misguided attempt to provoke some kind of response from plaintiff. Had the communications involved subjects other than legitimate concerns about the children's lives, defendant's persistence might have eventually been viewed as infused with a purpose to harass plaintiff. Divorced parents must necessarily communicate from time to time about their children. As the trial judge aptly noted, the parties' communications at this point were indeed "unhealthy." Dysfunctional as defendant's behavior may have been, however, without the requisite intent to harass his conduct was not actionable under the Domestic Violence Act.
Further, even if plaintiff had presented sufficient evidence to establish the predicate offense of harassment, we conclude defendant's conduct did not warrant the issuance of domestic violence restraints. Silver, supra, 387 N.J. Super. at 126-27. The evidence of the parties' interactions during the marriage and after its termination does not implicate the public policy concerns identified by the Legislature in the Domestic Violence Act, N.J.S.A. 2C:25-18. As Justice Hoens admonished in J.D., [a]lthough evidence offered by a putative victim may therefore suffice to meet the definition of harassment, courts must be careful not to overlook the statutory requirement that there be a finding that "relief is necessary to prevent further abuse." N.J.S.A. 2C:25-29(b). Merely concluding that plaintiff has described acts that qualify as harassment and omitting this added inquiry opens the door to potential abuse of the important purposes that the Act is designed to serve and threatens to trivialize the plight of true victims, in the process. [J.D. supra, _____ N.J. at ____, slip op. at 21 (internal quotation marks and citation omitted).]
Here, the evidence before the trial court did not show a history of domestic abuse by defendant against plaintiff. The remark made by defendant to plaintiff during the pendency of their divorce that "this is his house" and he could do what he wanted was an isolated incident devoid of any menacing behavior by defendant. Although spoken in anger and in close proximity to plaintiff's "personal space," the remark was not part of a pattern of verbal or physical abuse.
By all indications, this incident was merely an expression of anger by defendant during an emotional and highly stressful period of time for both parties. Thus, even if plaintiff had proven the predicate offense of harassment, there is no evidence that a final restraining order is necessary to prevent future abuse. Silver, supra, 387 N.J. Super. at 126-27.
Finally, plaintiff did not initially offer evidence that she was in fear of defendant. The court prompted her to do so by a series of leading questions, as we have underscored. We understand that a great number of domestic violence cases are heard without the benefit of counsel guiding a witness's testimony in a manner consistent with the rules of evidence. We are equally mindful that "[t]rial judges are vested with the authority to propound questions to qualify a witness's testimony and to elicit material facts on their own initiative and within their sound discretion." State v. Medina, 349 N.J. Super. 108, 131 (App. Div.), certif. denied, 174 N.J. 193 (2002). The concern over judicial involvement in the manner the court receives testimonial evidence is also "less acute in the context of bench trials." State v. Taffaro, 195 N.J. 442, 451 (2008). That being said, a trial judge must take special care to craft questions in such a manner to avoid being perceived as an advocate for any side of a dispute. See State v. O'Brien, 200 N.J. 520, 535 (2009).
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text:
Edging Towards Human Gene Therapy
Newark, Peter
Bibliographic Citation
NATURE 342(6247): 221, 16 November 1989
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text:
Jr. Sales Account Manager- Makati
ASTICOM Technology Inc.Is a verified Kalibrr employer
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text: My boyfriend and I originally were heading for Bombay for dinner. On arriving we realized that Bombay has closed its doors due to an unsavory landlord. Though disappointed it turned into an amazing experience at "The Social Urban Bar and Restaurant . Our service with Billy the bar manager and one of the most contemporary bartenders I have ever seen!... More


text:
Gary McKinnon
Boing Boing has a wonderful article on Gary over here. It boils down to:
- He 'hacked' into a number of military and nasa computers using username=guiest, password=hello
- He was looking for evidence of UFO's
- They caught him because he used his own eMail Address
- He's been diagnosed with Aspergers
So the US is extraditing him back to the US using evidence that wouldnt get him extradited from the US to the UK. Its seen as a very heavy handed way of plucking a UK citizen off the streets. And again, unsurprisingly, not a lot of folks in the UK think its going to be a particularly fair trial. After all, the CIA rendition flights touched down in the UK, and is common knowlege over here.
This is an opportunity for the new US administration to reverse the US's foreign policy created under Bush, and actually build bridges with other countries, instead of increasingly alienating them.
The truth of the matter, from my point of view, is that they're punishing Gary in order to cover up extremely shoddy security practices, claiming that he's some sort of evil hacker mastermind. No doubt this is in order to save face (an exercise that even the slowest reader will point out is too late) Meanwhile, the real evil hacker masterminds, some no doubt sponsored by regimes hostile to the US, are slipping away.


text:
LUBBOCK, Texas (AP) - Kansas State coach Frank Martin didn't mind his Wildcats committing 25 fouls as long as they were as a result of playing aggressive defense.
STILLWATER, Okla. - Freshman swingman Le'Bryan Nash scored a career-high 27 points, Brian Williams added a career-best 22 and Oklahoma State knocked off No. 2 Missouri 79-72 on Wednesday night.
STATE COLLEGE, Pa. (AP) - Joe Paterno's family along with former players and assistant coaches made their way Wednesday to a campus spiritual center for the revered coach's funeral service, a moment of private mourning during a week in which thousands from Penn State were saying goodbye.
DETROIT - With Prince Fielder and Miguel Cabrera in the middle of the lineup, the Detroit Tigers look ready for a season of slugging at Comerica Park.
SAN FRANCISCO - Two-time NL Cy Young Award winner Tim Lincecum and the San Francisco Giants reached a verbal agreement Tuesday on a two-year contract worth $40.5 million.
DETROIT (AP) - With Prince Fielder and Miguel Cabrera in the middle of the lineup, the Detroit Tigers look ready for a season of slugging at Comerica Park.
MIAMI - Chris Bosh scored 17 of his 35 points in the fourth quarter, LeBron James added 18 and the Miami Heat survived another shaky offensive night to beat the Cleveland Cavaliers 92-85 on Tuesday night.
ATHENS, Ga. - Darius Miller came off the bench to score 19 points and Kentucky cruised in its first game since returning to No. 1 in the rankings, beating Georgia 57-44 on Tuesday night.
LAWRENCE (AP) - Thomas Robinson carried No. 5 Kansas when things looked bleak, scoring 16 of his 18 points in the second half and leading the Jayhawks to a 64-54 win over scrappy Texas A&M on Monday night.
STATE COLLEGE, Pa. (AP) - Anguished by an unthinkable scandal that shook a university and tarnished the proud football program, many in the Penn State community rallied around a common cause.
SAN FRANCISCO (AP) - The New York Giants have their own Super Bowl formula: in overtime and on the road.
FOXBOROUGH, Mass. (AP) - Tom Brady got all the help he needed to get the New England Patriots into the Super Bowl.
STATE COLLEGE, Pa. (AP) - Happy Valley was perfect for Joe Paterno, a place where "JoePa" knew best, where he not only won more football games than any other major college coach, but won them the right way: with integrity and sportsmanship. A place where character came first, championships second.
SOUTH BEND, Ind. - Jack Cooley had 17 points and 10 rebounds against a Syracuse team missing its shot-blocking, rebounding center Fab Melo and the Irish surprised the top-ranked and previously unbeaten Orange 67-58 on Saturday night.
Page 269 of 390
OXON HILL, Md. (AP) - Wade Davis already had closed out a World Series. And that was part of his appeal for the Chicago Cubs.
KANSAS CITY, Mo. (AP) - The Raiders and Chiefs are such bitter foes that not even a late-season game between losing teams with no hope of ...
ATLANTA (AP) - The Kansas City Chiefs and Atlanta Falcons have found different ways to win despite ranking near the bottom of the league in yards ...
FORT WORTH, Texas (AP) - Jesse Ertz and Kansas State rushed to the end of coach Bill Snyder's 25th regular season, and to another bowl ...
New York Giants (8-3) at Pittsburgh (6-5)
LAWRENCE (AP) - Jerrod Haase received a long, loud ovation upon his return to Allen Fieldhouse on Saturday.
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Alternative Titles
Synonyms: Nora Sis, Wandering Priest, Wandering Witch
Japanese: のらシス
Type: Manga
Volumes: 1
Chapters: 11
Status: Finished
Published: Aug 26, 2011
Genres: Hentai
Authors: Nekogen (Story & Art)
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Deep Fried Catfish w/ Appalichian Cole Slaw
Gina Davis
Lord we love us some catfish here, well really all fish here. Me and my husband are huge fishermen (I am the pro lol No Really I tourney fish) And we love to fry all our fish. I pulled this out of the freezer from a trip last summer and this is just the best fried catfish around. The bump in flavor from the buttermilk and the spices and lemon just make this good hills food! YUM! Throw in the "Appy Slaw" and it is a meal!
Featured Pinch Tips Video
Be the First
1 Hr 15 Min
10 Min
Deep Fry
- 2 lb
- catfish filets (or more depending on size of meal)
- 2 c
- whole buttermilk (or low fat)
- 2 Tbsp
- lemon or lime juice either is fine
- 1 Tbsp
- hot sauce
- 3 c
- flour (sr or ap is fine)
- 1 c
- corn meal mix
- 2 Tbsp
- cajun seasoning (i use my own home mix here but any is fine just use what you like)
- pleanty of oil for deep frying
- 1 lb
- head of cabbage chopped and finely diced
- 2 - 3
- carrots peeled, chopped and finely diced
- 4
- green onions finely diced
- 1 1/2 c
- mayonnaise (i use dukes or hellmanns a good mayo makes for a good start)
- 2 Tbsp
- mustard
- 2 Tbsp
- sugar
- 2 Tbsp
- apple cider vinegar
- salt and pepper to taste
Directions Step-By-Step
2To me the most important thing you can do for this dish is to clean them cats good! Some people say the red streak (fat) down the middle of the filet does not change the flavor of the fish BUT I have found it does it gives it that "fishy" taste to me! Ok I did a few photos to show what i mean on the cleaning, trimming and cutting into fingers.....Hope this helps :)
3Cut the filets in half following the middle split in the filet.
trim the thickest part of the red or brownish color off the filet after you cut in half.
4Cut each diagonally into fingers you will get 2 to 3 "fingers" per piece of catfish depending on size
6In separate bowl mix up buttermilk, hot sauce and lemon or lime juice and pour over catfish. Let this soak for around 30 minutes
7In a big Ziploc bag place flour, cornmeal mix and Cajun seasoning. I don't add extra salt because the seasoning seems to have plenty but add it if you think it needs it pepper to :) Shake the mix around to get good and mixed up.
8Finger drain your catfish (just pick up a few and let them drain shake off some of the liquid) and add to flour mixture add a few and shake them around and then add a few more and shake them around repeat until all are in bag and coated with flour/cornmeal mix. If you seem to be running low on the mix or fingers are not coated good toss in a handful of flour and shake some more :)
9Let catfish hang out in Ziploc bag while you heat your oil to 350 degree once oil is hot place a few fingers into it and fry until nice and brown. Do this in batches so you don't over crowed the pot.
12Cut, Chop and Finely dice cabbage. Peel, cut, chop and Finely dice Carrots. Finely dice green onions and put in a bowl together.
14Pour dressing over cabbage mixture and mix well. Taste to see if you want more mayo or vinegar or mustard Make this your own if it is to much vinegar add a little mayo and a sprinkle of sugar, to sweet add a drop of mustard or vinegar. Just play to get your favorite flavor out of this that how we do it up here in the Appy Mountains :)
About this Recipe
Course/Dish: Fish
Main Ingredient: Fish
Regional Style: American
Hashtags: #Fried, #deep-fried, #catfish, #cole slaw, #fish, #fried fish, #fried catfish, #american slaw, #mustard slaw, #deep fried fish


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|Institution Type
|American River College
|2-year, Public
|Central New Mexico Community College
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|Columbus State Community College
|2-year, Public
|CUNY Borough of Manhattan Community College
|2-year, Public
|Des Moines Area Community College
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|El Camino Community College District
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Find your new home in 04852, MEYou are viewing 0 homes for sale
{"ListingID":"0x8F196FB5EE268AC8D58F0AF64E6F491C","StreetAddress":"12 Meadow View Ln","StreetAddressFull":"12 Meadow View Ln, Monhegan, ME","Price":"$220,000","PriceDisplay":"$220,000","PriceForMap":"$220,000","Bedrooms":"2","Bathrooms":"1","Prop_BedsBaths":"2 beds 1 bath ","HalfBathrooms":"0","PropertyType":"Single Family","Latitude":null,"Longitude":null,"Distance":0,"Thumbnail":"http:\/\/propertyimage.leadingre.com\/96162\/0x8F196FB5EE268AC8D58F0AF64E6F491C\/1_thumb.jpg","Href":"\/listingdetails\/usa\/me\/monhegan\/12-meadow-view-ln-04852_0x8f196fb5ee268ac8d58f0af64e6f491c\/"}
Learn more about homes in 04852, ME
04852 Home inventory breakdown by property type
Of the 0 homes for sale in 04852, the breakdown of property types
is as follows:
Area details, home facts and figures
Homes for sale 1
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Price Range ($0 - $0)
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You are Viewing 1 to 1 of 1 homes for sale in 04852. These homes are comprised of . The average list price of these property results is 0. Prices are listed as US Dollar. For more information on these homes for sale in 04852 please contact our member brokerages to schedule a showing or view an open house.
The 0 homes for sale in 04852, ME are represented by 1 member brokerages serving the 04852 area. Member brokerages representing the 0 homes include The Maine Real Estate Network.


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Chief Wyatt Rash (Character)
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United States District Court, S.D. California
December 1, 2005.
LAMONT JOHNSON, Petitioner,
ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondent.
Review of the Petition reveals that Petitioner has again failed
to name a proper respondent. On federal habeas, a state prisoner
must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891,
894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254).
Federal courts lack personal jurisdiction when a habeas petition
fails to name a proper respondent. See id.
The warden is the typical respondent. However, "the rules
following section 2254 do not specify the warden." Id. "[T]he
`state officer having custody' may be `either the warden of the
institution in which the petitioner is incarcerated . . . or the
chief officer in charge of state penal institutions.'" Id.
(quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's
note). If "a petitioner is in custody due to the state action he
is challenging, `[t]he named respondent shall be the state
officer who has official custody of the petitioner (for example,
the warden of the prison).'" Id. (quoting Rule 2, 28 U.S.C.
foll. § 2254 advisory committee's note).
A long standing rule in the Ninth Circuit holds "that a
petitioner may not seek [a writ of] habeas corpus against the
State under . . . [whose] authority . . . the petitioner is in
custody. The actual person who is [the] custodian [of the
petitioner] must be the respondent." Ashley v. Washington,
394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a
writ of habeas corpus acts upon the custodian of the state
prisoner, the person who will produce "the body" if directed to
do so by the Court. "Both the warden of a California prison and
the Director of Corrections for California have the power to
produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895.
Here, Petitioner has incorrectly named "Attorney General of the
State of California," as Respondent. Rule 2(b) of the rules
following section 2254 states that "if the applicant is not
presently in custody pursuant to a state judgment against which
he seeks relief but may be subject to such custody in the
future," then "the officer having present custody of the
applicant as well as the attorney general of the state in which
the judgment which he seeks to attack was entered shall each be
named as respondents." Rule 2 (b), 28 U.S.C. foll. § 2254. The
Attorney General of the State of California is not a proper
respondent in this action because Petitioner is presently in
custody, and consequently there is no basis for Petitioner to
have named the Attorney General as a respondent in this action.
In order for this Court to entertain the Petition filed in this
action, Petitioner must name the warden in charge of the state
correctional facility in which Petitioner is presently confined or the Director of the
California Department of Corrections. Brittingham v.
United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
In addition, Petitioner has again failed to allege exhaustion
as to claim three. (See Pet. at 12.) The exhaustion requirement
is satisfied by providing the state courts with a "fair
opportunity" to rule on Petitioner's constitutional claims.
Anderson v. Harless, 459 U.S. 4, 6 (1982). In most instances, a
claim is exhausted once it is presented to a state's highest
court, either on direct appeal or through state collateral
proceedings.*fn1 See Sandgathe v. Maass, 314 F.3d 371, 376
(9th Cir. 2002). The constitutional claim raised in the federal
proceedings must be the same as that raised in the state
proceedings. See Anderson, 459 U.S. at 6. Here, Petitioner has
not alleged exhaustion as to his claim that his sentence violates
the Eighth Amendment to the United States Constitution (claim
three). (See Pet. at 12.)
In order to cure this pleading deficiency and permit the case
to go forward, Petitioner must choose from one of the following
i) First Option: Demonstrate Exhaustion
ii) Second Option: Voluntarily Dismiss the Petition
Petitioner may move to voluntarily dismiss his entire federal
petition and return to state court to exhaust his unexhausted
claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy,
455 U.S. 509, 510, 520-21 (1982) (stating that a petitioner who files a
mixed petition may dismiss his petition to "return[] to state
court to exhaust his claims"). If Petitioner chooses this second
option, he must file a pleading with this Court no later than
February 3, 2006. Respondent may file a reply by March 3,
Petitioner is cautioned that any new federal petition must be
filed before expiration of the one-year statute of limitations.
Ordinarily, a petitioner has one year from when his conviction
became final to file his federal petition, unless he can show
that statutory or equitable "tolling" applies. Duncan v.
Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d).*fn2
Filing a petition in federal court does not stop the statute of
limitations from running. Id. at 181-82; Frye v. Hickman,
273 F.3d 1144, 1145-46 (9th Cir. 2001); 28 U.S.C. § 2244(d).
iii) Third Option: Formally Abandon Unexhausted Claim(s)
Petitioner may formally abandon his unexhausted claim and
proceed with his exhausted ones. See Rose, 455 U.S. at 510,
520-21 (stating that a petitioner who files a mixed petition may
"resubmit[] the habeas petition to present only exhausted
claims"). If Petitioner chooses this third option, he must file a
pleading with this Court no later than February 3, 2006.
Respondent may file a reply by March 3, 2006.
Petitioner is cautioned that once he abandons his unexhausted
claim, he may lose the ability to ever raise it in federal court.
See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a
first § 2254 petition renders any later petition successive);
see also 28 U.S.C. § 2244 (a)-(b).*fn3
iv) Fourth Option: File a Motion to Stay the Federal
Petitioner may move to dismiss his unexhausted claim without
prejudice and stay this federal proceeding while he returns to
state court to exhaust his unexhausted claims. Calderon v.
United States Dist. Ct. for the N. Dist. of Cal., 134 F.3d 981,
986-88 (9th Cir. 1998); Valerio v. Crawford, 306 F.3d. 742,
770-71 (9th Cir. 2002) (en banc). If Petitioner chooses this
fourth option, he must file a pleading with this Court no later
than February 3, 2006. Respondent may file a reply by March 3,
The Court DISMISSES this case without prejudice and with
leave to amend because Petitioner has: (1) failed to name the
proper respondent, and (2) failed to alleged exhaustion as to his
state court remedies. Accordingly, if Petitioner wishes to
proceed with this case he must, no later than February 3,
2006: (1) file a Second Amended Petition which names the proper
respondent and which is signed, AND (2) choose one of the
options outlined above.*fn4
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February 15, 2011
ALEX SHADIE, PLAINTIFF,v.GLORIA FORTE AND HAZLETON AREA SCHOOL DISTRICT, DEFENDANTS,
Presently before the Court is Defendant Hazleton Area School District's Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 16.) For the reasons stated below, Defendant's Motion will be granted in part and denied in part.
The facts alleged in the Complaint are as follows. Plaintiff is an adult individual residing in Luzerne County, Pennsylvania. Plaintiff has been diagnosed as having autism, a neurological condition that ranges in severity and impacts development in the areas of social interaction and communication skills. Plaintiff's condition limits his ability to function, and he has been diagnosed as being moderately mentally retarded. During the relevant time frame, Plaintiff was enrolled in a 12th grade Life Skills class at Hazleton Area High School. At that time, Defendant Gloria Forte was employed by Defendant Hazleton Area School District as a class aide in that class. During the course of performing her duties as a class aide, Defendant Forte repeatedly employed the use of "aversive" techniques, which are techniques designed to establish a negative association with a specific behavior. These techniques are specifically excluded from Title 22 of the Pennsylvania State Codes List of Positive Approaches to Behavior Management, § 14.133(e) -- the regulations for special education devised by the State Department of Education. The techniques used by Defendant Forte on the Plaintiff included: grabbing the Plaintiff by the arm; shaking the Plaintiff; stating to the Plaintiff, "Alex wake up. What's wrong with you?"; striking the Plaintiff in the forehead with the palm of her hand; shoving the Plaintiff into his chair; and knocking the Plaintiff's feet from a chair. These techniques were employed on at least three occasions during the 2007-2008 school year in response to Plaintiff becoming non-responsive in class: January 2, 2008, March 4, 2008, and March 7, 2008, and were reported to Carl Manfredi, the head of special education for the Hazleton Area School District. No action was taken by Mr. Manfredi, and Defendant Forte remained in her position as an aide in the 12th grade life skills classroom. As a result of these actions, Plaintiff suffered regression in his development, physical injuries, including bruising and contusions, and post-traumatic stress disorder.
Plaintiff filed his original Complaint in state court. The suit was removed to federal court by Defendants on October 13, 2010. Defendant Hazleton Area School District moved to have the Complaint dismissed on October 19, 2010. (Doc. 2.) Plaintiff then amended his Complaint, which was filed on December 14, 2010. (Doc. 15.) In the Amended Complaint, Plaintiff brings claims against Defendant Hazleton Area School District and Defendant Forte for violating his substantive Due Process and Equal Protection rights under the 14th Amendment (Count I); violating the Individuals with Disabilities Education Act ("IDEA") (Count II); violating § 504 of the Federal Rehabilitation Act (Count VII); Breach of Fiduciary Duty (Count V); and Negligence (Count VI). Plaintiff also brought claims against Defendant Forte for Assault and Battery (Count III) and Intentional Infliction of Emotional Distress (Count IV).
Defendant Hazleton Area School District filed a Motion to Dismiss Plaintiff's Amended Complaint on December 28, 2010. (Doc. 16.) Specifically, Defendant seeks to have the entire Complaint dismissed for Plaintiff's failure to exhaust his administrative remedies under the IDEA. In the alternative, Defendant seeks to have Plaintiff's 14th Amendment claims, the breach of fiduciary duty and negligence claims, and any claims for punitive damages against the Hazleton Area School District dismissed for failing to state a claim. The Motion has been briefed by both sides and is ripe for review.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).
In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
Further, Defendant's Motion to Dismiss seek dismissal of Plaintiff's Complaint on the grounds that Plaintiff failed to exhaust his administrative remedies. In most circumstances, motions for dismissal based on a failure to exhaust administrative remedies are reviewed under Rule 12(b)(6), rather than under Federal Rule of Civil Procedure 12(b)(1), because the exhaustion requirement normally does not implicate a court's jurisdiction. Anjelino v. New York Times Co., 200 F.3d 73, 87-88 (3d Cir.1999); see also D'Amico v. CBS Corp., 297 F.3d 287, 290 (3d Cir.2002). In contrast, the Third Circuit Court of Appeals in W.B. v. Matula determined that exhaustion is jurisdictional in the IDEA context. 67 F.3d 484, 493 (1995). Accordingly, the appropriate device by which to consider this jurisdictional challenge is a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1) (providing for dismissal of complaint where court lacks subject matter jurisdiction). See Falzett v. Pocono Mountain Sch. Dist., 150 F.Supp.2d 699, 701 & n. 2 (M.D.Pa.2001) (Caputo, J.). Therefore, Defendant's Motion to Dismiss will be construed as pursuant to Rule 12(b)(1) to the extent that it challenges Plantiff's failure to exhaust administrative remedies.
Unlike dismissal under Federal Rule of Civil Procedure Rule 12(b)(6), dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks the authority to hear the case. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977).
I. Plaintiff's Failure to Exhaust his Administrative Remedies Plaintiff's Complaint will not be dismissed for failing to exhaust his administrative remedies because Plaintiff is suing for damages, a remedy unavailable under the IDEA administrative procedures.
In 1970, Congress enacted the Education of the Handicapped Act (EHA), later renamed the Individuals with Disabilities Education Act (hereinafter, "the IDEA"), codified at Title 20 of the United States Code, sections 1400 et seq. , to assure that all children with disabilities have available to them a free appropriate public education. The IDEA emphasizes special education and related services designed to meet their unique needs. The central purpose of the IDEA is to ensure that children with disabilities have a free appropriate public education (FAPE), and that their rights are protected. 20 U.S.C. § 1400(d).
The IDEA conditions a state's receipt of federal funds for special education programs on its implementation of "policies and procedures to ensure that ... [a] free appropriate public education is available to all children with disabilities...." 20 U.S.C. § 1412(a)(1)(A); Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir.2004). A free appropriate public education " 'consists of educational instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to 'benefit' from the instruction.' " W.B. v. Matula, 67 F.3d 484, 491 (3d Cir.1995) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). The "primary vehicle" for implementing a free appropriate public education is the Individualized Educational Program (IEP). "The IEP consists of a detailed written statement arrived at by a multi-disciplinary team summarizing the child's abilities, outlining the goals for the child's education and specifying the services the child will receive." Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir.1988) (citing 30 C.F.R. § 300.347), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989). Melissa S. v. School Dist. of Pittsburgh, 183 Fed.Appx. 184, 186-87 (3d Cir.2006).
To prevail on a claim that a school district failed to implement an IEP, a plaintiff must show that the school failed to implement substantial or significant provisions of the IEP, as opposed to a mere de minimis failure, such that the disabled child was denied a meaningful educational benefit. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir.2000). Flexibility to implement an IEP is maintained, yet the school district is accountable for "confer[ring] some educational benefit upon the handicapped child," as required by the IDEA. T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir.2000) (citing Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034). Melissa S., 183 Fed.Appx. at 187.
The IDEA creates a "right, enforceable in federal court, to the free appropriate public education required by the statute." Smith v. Robinson, 468 U.S. 992, 1002 n. 6, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), superseded by statute on other grounds by Pub.L. No. 99-372, 100 Stat. 796 (1986); accord Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (describing the right to a free appropriate public education as "an enforceable substantive right"). Before a plaintiff can bring a claim in federal court for an IDEA violation, however, he must exhaust his administrative remedies, including, in Pennsylvania, a local due process hearing and an appeal to the state educational agency. 20 U.S.C. § 1415(f). Any party dissatisfied with the state administrative hearing may bring a civil action in state or federal court, in which the court must conduct an independent review based on the preponderance of the evidence, while giving "due weight" to the state administrative findings. Polk, 853 F.2d at 173 (citing Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034).
The IDEA's exhaustion requirement applies to all claims for relief available under the IDEA, even if a claim arises under a different cause of action. Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir.1996). That is to say, a plaintiff may not avoid the exhaustion requirement by alleging an IDEA violation in a § 1983 claim predicated upon the IDEA.
As noted above, the IDEA requires a party to exhaust administrative remedies before they may sue in federal court. 20 U.S.C. § 1415( l ); Lester H. by Octavia P. v. Gilhool, 916 F.2d 865, 869 (3d Cir.1990). Plaintiff concedes that he did not satisfy the IDEA's exhaustion requirements. Plaintiff argues, however, that his failure to exhaust is excused under a recognized exception to the exhaustion doctrine.
According to the Third Circuit Court of Appeals, exhaustion under the IDEA is excused when resort to such procedures would be "futile or inadequate." Matula, 67 F.3d at 495; see also Honig, 484 U.S. at 327, 108 S.Ct. 592 (recognizing "futile or inadequate" exception to exhaustion requirement). Where plaintiffs seek application of this exception, it is their burden to prove the futility or inadequacy of administrative exhaustion. Honig, 484 U.S. at 327, 108 S.Ct. 592. The Third Circuit Court of Appeals, excusing failure to exhaust based on the futility exception, has held that "where the relief sought in a civil action is not available in IDEA administrative proceedings, recourse to such proceedings would be futile and the exhaustion requirement is excused." Matula, 67 F.3d at 496 (citing Gilhool, 916 F.2d at 870). Accord McCachren v. Blacklick Valley Sch. Dist., 217 F.Supp.2d. 594, 597 (W.D.Pa.2002) (holding that the exhaustion requirement is limited to actions seeking relief that is "also available" under the IDEA). In reaching this conclusion, the Court of Appeals looked first to the language of the statute itself. The IDEA states that "before the filing of a civil action under such laws ... seeking relief that is also available under this subchapter, the procedures under subsection (f) and (g) of this section shall be exhausted...." 20 U.S.C. § 1415( l ) (emphasis added); Matula, 67 F.3d at 495 (quoting this language, which was then found at 20 U.S.C. § 1415(f)). Recognizing that damages are available under § 1983, but not under the IDEA administrative procedures, the Matula court then concluded that "by its plain terms [this section] does not require exhaustion where the relief sought is unavailable in an administrative proceeding." Matula, 67 F.3d at 495. The Matula court reviewed the legislative history, and found compelling support for applying this exception to failure to exhaust IDEA administrative procedures in that case. Id.
Here, as in Matula, Plaintiff also seeks money damages, relief not available under the IDEA. As a result, Plaintiff's IDEA claim, as well as the remainder of Plaintiff's Complaint, will not be dismissed for failing to exhaust his administrative remedies. While Defendant warns that "plaintiffs . . . should not be permitted to 'sit on' live claims and spurn the administrative process that could provide for the educational services they seek, then later sue for damages," Polera v. Bd. of Educ., 288 F. 3d 478, 481 (2d Cir. 2002), such a scenario is not present here since the relevant events are alleged to have taken place in large part in the second half of Plaintiff's senior year, and therefore would not have been rectified by the IDEA procedures prior to Plaintiff's graduation.
II. Plaintiff's 14th Amendment Claims Plaintiff's 14th Amendment claims for violations of his Substantive Due Process and Equal Protection rights under § 1983 against Defendant Hazleton Area School District will be dismissed for failure to state a claim upon which relief can be granted.
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The liability of local and municipal government agencies under § 1983 is governed by Monell v. New York City Dept. of Social Services. In that case, the United States Supreme Court held that a municipality may be a "state actor" for purposes of liability under § 1983. However, the Supreme Court also held that: "[a] municipality may not be held liable under § 1983 for the constitutional torts of its employees by virtue of respondeat superior. Rather, a municipality may be held liable for the conduct of an individual employee or officer only when that conduct implements an official policy or practice." Monell v. New York City Dept. of Social Services, 98 S. Ct. 2018 (1978). In fleshing out what constitutes 'implementing official policy or practice, the Third Circuit has held:
An individual's conduct implements official policy or practice under several types of circumstances, including when (1) the individual acted pursuant to a formal government policy or a standard operating procedure long accepted within the government entity, (2) the individual himself has final policy-making authority such that his conduct represents official policy, or (3) a final policy-maker renders the individual's conduct official for liability purposes by having delegated to him authority to act or speak for the government, or by ratifying the conduct or speech after it has occurred.
Hill v. Borough of Kutztown, 455 F.3d 225. 245 (3d Cir. 2006) (internal citations omitted).
Here, Plaintiff has not alleged any facts that would support a theory that Defendant Forte, in allegedly using aversive techniques on the Plaintiff, was implementing an official policy or practice. While Plaintiff alleges that Mr. Manfredi, the head of special education for the district, was informed of the alleged incidents of abuse, this lone assertion is insufficient to meet any of the tests for evaluating individual conduct outlined in Hill. Therefore, since Defendant Hazleton Area School District cannot be held liable for Defendant Forte's violations of Plaintiff's 14th Amendment rights under § 1983 solely by virtue of a respondeat superior theory of vicarious liability, these claims will be dismissed as to Defendant Hazleton Area School District. The Court needn't address the substantive merits of these claims with respect to Defendant Forte at this juncture since she has not moved to have them dismissed.
III. Plaintiff's State Law Breach of Fiduciary Duty and Negligence Claims
Plaintiff's breach of fiduciary duty and negligence claims against Defendant Hazleton Area School District will be dismissed because the Defendant is immune from suit on these claims under the Political Subdivision Tort Claims Act ("PSTCA"). That Act, codified at 42 Pa. C.S. § 8541, states: "Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person."
In order to circumvent the broad immunity of local agencies from suit under the PSTCA and to impose liability, two conditions must be met: one, the damages must be recoverable under common law or a statute creating a cause of action, and two, the injury must be caused by the agency or one of its employees acting within the scope of their duties with respect to one of eight categories, including, (1) the operation of motor vehicles, (2) the care, custody or control of personal property, (3) the care, custody or control of real property, (4) trees, traffic controls and street lighting, (5) utility service facilities, (6) streets, (7) sidewalks, and (8) the care, custody or control of animals. 42 Pa. Cons.Stat. Ann. § 8542.
Here, although the common law of Pennsylvania does provide remedies for claims of Breach of Fiduciary Duty and Negligence, the actions underlying these claims do not fall within one of the eight categories outlined immediately above. As a result, the PSTCA provides immunity for Defendant Hazleton Area School District with respect to Plaintiff's Breach of Fiduciary Duty and Negligence claims. Furthermore, Defendant Hazleton Area School District, as a local agency under the PSTCA, cannot be held liable for punitive damages. Marko v. City of Phila., 133 Pa.Cmwlth. 574, 576 A.2d 1193, 1194 (1990). Therefore, Plaintiff's state law tort claims, as well as any claim for punitive damages against the Defendant Hazleton Area School District, will be dismissed.
For the reasons stated above, Defendant Hazleton Area School District's Motion to Dismiss (Doc. 16) will be granted in part and denied in part. Plaintiff's Complaint will not be dismissed for Plaintiff's failure to exhaust his administrative remedies. However, Plaintiff's Due Process and Equal Protection 14th Amendment Claims, along with the Breach of Fiduciary Duty and Negligence claims, will all be dismissed as to Defendant Hazleton Area School District. Plaintiff's IDEA and Federal Rehabilitation claims are still be pending with respect to Defendant Hazleton Area School District, as well as all of Plaintiff's claims against Defendant Forte. An appropriate order follows.
A. Richard Caputo United States District Judge
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ALEX SHADIE, Plaintiff, v. GLORIA FORTE and HAZLETON AREA SCHOOL DISTRICT, Defendants,
ORDER NOW, this 15th day of February, 2011, IT IS HEREBY ORDERED that Defendant Hazleton Area School District's Motion to Dismiss is GRANTED in part and DENIED in part as follows:
(1) Defendant Hazleton Area School District's Motion to Dismiss Plaintiff's Complaint for failure to exhaust his administrative remedies is denied. (2) Defendant Hazleton Area School District's Motion to Dismiss Plaintiff's Substantive Due Process and Equal Protection claims against it is granted. (3) Defendant Hazleton Area School District's Motion to Dismiss Plaintiff's Breach of Fiduciary Duty and Negligence claims against it is also granted.
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