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J.E. ex rel. Edwards v. Center Moriches Union Free School Dist.

United States District Court, E.D. New York

September 22, 2012

J.E., C.E., C.E. Jr., and S.E., as infant plaintiffs by their mother and natural guardian, Victoria EDWARDS, individually, Plaintiffs,
v.
CENTER MORICHES UNION FREE SCHOOL DISTRICT, Center Moriches High School, Center Moriches Board of Education, Dr. Phillip Cicero, in his individual and official capacity, Lino Bracco, in his individual and official capacity, Michael Cruz, in his individual and official capacity, Dr. Bert Nelson, in his individual and official capacity, Tom Kretsos, in his individual and official capacity, Bill Straub, in his individual and official capacity, Marc Trocchio, in his individual and official capacity, and Veronica Tredwell, in her individual and official capacity, Defendants.

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Frederick K. Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY, for Plaintiffs.

Brian S. Sokoloff, Melissa Lauren Holtzer, Sokoloff Stern LLP, Westbury, NY, Steven C. Stern, Leo Dorfman, Sokoloff Stern LLP, Carle Place, NY, Rondiene Erin Novitz, Gary Edward Dvoskin, Keith V. Tola, Cruser Mitchell & Novitz, LLP, Melville, NY, for Defendants.

ORDER

ROSLYNN R. MAUSKOPF, District Judge.

By motions filed April 13, 2011, the District Defendants [1] and defendant Tom Kretsos moved for summary judgment of

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all plaintiffs' claims. (Doc. Nos. 157, 158.) By Order entered October 25, 2011, this Court referred those motions to the assigned Magistrate Judge, the Honorable Arlene R. Lindsay, for a Report and Recommendation. On August 7, 2012, Judge Lindsay issued a Report and Recommendation (the " R & R" ) recommending that this Court grant the motions for summary judgment on the federal claims, decline to exercise supplemental jurisdiction over any state claims, and dismiss those state claims without prejudice. (Doc. No. 167.) On August 22, 2012, plaintiffs filed objections. (Doc. No. 175.) On September 13, 2012, the District Defendants responded thereto (Doc. No. 177), and on September 18, 2012, defendant Kretsos responded thereto (Doc. No. 178). For the reasons set forth below, this Court finds plaintiffs' objections to be without merit, and adopts the thorough and well-reasoned R & R in its entirety.

DISCUSSION

When reviewing a Report and Recommendation, a district court " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party raises an objection to an R & R, " the court is required to conduct a de novo review of the contested sections." See Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991). However, where an objection consists of " conclusory or general arguments" or is merely an " attempt to engage the district court in rehashing of the same arguments set forth in the original petition," clear error review is appropriate. DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y.2009). Likewise, a district court is not required to review de novo, and may instead review for clear error, those portions of a report and recommendation to which no specific objections are addressed. See Id.

Notably, plaintiffs do not object to the majority of recommendations to dismiss plaintiffs' causes of action, including dismissal of: the First Amendment Retaliation claim, the municipal liability claims, the conspiracy claims under 42 U.S.C. § 1985 and 1986, the Title VI claims, claims against defendant Dr. Bert Nelson based on quasi-judicial immunity, and the individual claims against defendants Cicero, Bracco, Cruz, Straub, Trocchio, and Treadwell. Although only required to conduct a review for clear error, this Court finds in its de novo review that these claims are dismissed for the reasons articulated in the R & R.[2]

However, plaintiffs do object to the recommendations that their substantive due process, procedural due process, and equal protection claims be dismissed. In light of plaintiffs' objections, this Court has reviewed these claims de novo.

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Concerning their substantive due process claims, plaintiffs contend that the magistrate judge impermissibly made findings of fact, in favor of the defendants, concerning the extent of plaintiffs' physical and psychological injuries, and the sequence of events related to defendant Kretsos' alleged use of racial epithets and alleged punching of plaintiffs J.E.[3] and C.E. [4] Specifically, plaintiffs assert that their physical and psychological injuries were " substantial," that " Defendant Kretsos yelled racist slurs at Plaintiffs prior to the altercation inside the school building and contemporaneously to punching both female Plaintiffs," and that " at the time Defendant Kretsos punched both infant Plaintiffs [J.E.] and [C.E.] in the face, the altercation had ceased." (Pls. Obj. at 5, 8.) Plaintiffs argue that because they allege substantial injury, it follows that defendant Kretsos must have applied force maliciously or sadistically to plaintiffs J.E. and C.E.; yet, plaintiffs do not cite any case law involving a Fourteenth Amendment substantive due process claim to support their theory. Also, plaintiffs contend that because they allege that defendant Kretsos shouted racial slurs prior to and during the second altercation on April 4, 2003, that it follows there is a genuine issue of material fact whether defendant Kretsos acted maliciously or sadistically. But as the magistrate judge noted, and this Court hold after de novo review, there is no evidence, other than the two racial slurs allegedly uttered by defendant Kretsos on April 4, 2003 in the context of two altercations involving multiple students, that defendant Kretsos was motivated by racial animus nor is there any evidence that defendant Kretsos applied force maliciously or sadistically to either J.E. or C.E. Moreover, while neither this Court nor the magistrate judge condones the use of racial slurs, plaintiffs' claims do not rise to the level of a constitutional violation. See Yap v. Oceanside Union Free Sch. Dist., 303 F.Supp.2d 284, 297 (E.D.N.Y.2004) (holding that allegations of racist statements made by school staff to a student was insufficient to raise a substantive due process claim).

Plaintiffs further argue that there is a dispute concerning whether defendant Kretsos was trying to stop the fight when he was alleged to have punched plaintiff J.E. However, this is not a dispute of material fact. However, upon de novo review, the uncontroverted evidence demonstrates that defendant Kretsos attempted to stop the fight between J.E. and another student, and even physically interjected himself between the two fighting students. Whether defendant Kretsos punched plaintiff J.E. during the fight— as plaintiff S.E. testified— or immediately after the fight— as plaintiff C.E. testified— is immaterial. It was during the context of attempting to stop an altercation that defendant Kretsos allegedly punched J.E. and C.E. Even taking as true all of the facts exactly as described and characterized in plaintiffs' opposition papers, plaintiffs' substantive due process claims still do not rise to the level of a constitutional violation as a matter of law.

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See Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.2002) (holding that allegations of a teacher hitting a student for breaking an egg in class was insufficient to raise a substantive due process claim); Perrin v. Canandaigua City Sch. Dist., 08-cv-6135L, 2008 WL 5054241, at *4 (W.D.N.Y. Nov. 21, 2008) (holding that allegations of a gym teacher pulling a student's arms behind his back, forcing the student through a door into the locker room, and punching and poking the student in the chest while berating him with use of foul, profane, and demeaning language was insufficient to raise a substantive due process claim).

Additionally, plaintiffs contend that the defendants violated plaintiff Victoria Edwards' substantive due process rights by filing a PINS petition and making a report to Child Protective Services to have plaintiff C.E. returned to school. In support of their contention, plaintiffs argue that the magistrate judge incorrectly found that plaintiff Victoria Edwards' safety concerns regarding the school environment were subjective. Plaintiffs also assert that the magistrate misstated and misapplied the law concerning the purpose of the PINS action and concerning a liberty interest on behalf of a parent to dictate the educational environment of a child of compulsory education age or a constitutional parental right not to be forced to place such child in a school environment that the parent perceives to be unsafe. However, plaintiffs have not provided, nor did the magistrate judge or this Court find, any case law to support such a claim.

Regarding their procedural due process claims, plaintiffs argue that the magistrate judge erroneously found that plaintiffs had the opportunity to confront witnesses during an administrative disciplinary hearing, and misstated and misapplied the law in considering the tutoring services and the denial of tutoring services. These objections are simply an attempt to rehash the same arguments that the magistrate considered and found deficient. Nonetheless, this Court goes beyond its obligation to review for clear error and finds, in its de novo review, that the process afforded to the infant plaintiffs related to their disciplinary hearings, the post-deprivation procedure related to the tutoring, and subsequent denial of tutoring satisfy the requirements of due process. Concerning the disciplinary proceedings, there is no genuine issue of material fact concerning the process afforded to the infant plaintiffs; they were provided (i) timely notice of the pending charges against them, (ii) a full opportunity to present their case at a formal disciplinary hearing prior to the decision to suspend each of them, and (iii) the ability to challenge that suspension on appeal. See DeFabio v. East Hampton Union Free Sch. Dist., 658 F.Supp.2d 461, 489-91 (E.D.N.Y.2009) (holding that due process was afforded where plaintiffs were given written notice of the charges against them, a full opportunity to present their case at a formal hearing prior to the decision to suspend, and provided procedures to challenge the decision). With respect to the adequacy of the tutoring and subsequent denial of tutoring services, it is undisputed that the state provided meaningful post-depravation remedies. Indeed, plaintiff Victoria Edwards challenged the adequacy of the tutoring with the New York State Department of Education; she received notice in writing that the home instruction for infant plaintiff C.E. would end upon the expiration of her suspension from school; and she had the opportunity to address her concerns with school district officials. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881-82 (2d Cir.1996) (holding that " there is no constitutional violation (and no available § 1983 action)

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when there is an adequate state post-deprivation procedure to remedy a random, arbitrary deprivation of property or liberty" ).

Finally, plaintiffs argue that the magistrate incorrectly recommended dismissal of their equal protection claim because the magistrate judge ignored the plaintiffs' experts' testimony and certain findings regarding selective enforcement. It is apparent that the magistrate did consider evidence of selective enforcement. See R & R at 37-43. Nevertheless, plaintiffs' evidence of selective enforcement does not demonstrate that a similarly situated student of a different race or national origin who was involved in a fight, riot, or physical altercation with a security guard was more favorably treated than the infant plaintiffs. Thus, because no rational juror could find that plaintiffs have shown they were treated differently than other similarly situated individuals, plaintiffs claim fails as a matter of law. See Vassallo v. Lando, 591 F.Supp.2d 172, 184-85 (E.D.N.Y.2008) (granting summary judgment on equal protection claim where student-plaintiff failed to raise a genuine issue of material fact over whether student-plaintiff was treated differently than other similarly situated students).

CONCLUSION

Upon a de novo review of Judge Lindsay's thorough and well-reasoned R & R, and the factual and procedural record upon which it is based, plaintiffs' objections are overruled, and the R & R is adopted in its entirety. Accordingly, defendants' motions for summary judgment on all federal claims are GRANTED. Further, this Court declines to exercise supplemental jurisdiction over plaintiffs' state claims. The Clerk of the Court is directed to enter Judgment accordingly and to close the case.

SO ORDERED.

REPORT AND RECOMMENDATION

LINDSAY, United States Magistrate Judge:

Plaintiffs J.E., C.E., C.E. Jr., S.E. (referred collectively as the " infant plaintiffs" or the " Edwards children" ) as infant plaintiffs by their mother and natural guardian, Victoria Edwards (" Victoria" or the " infant plaintiffs' mother" ), and individually (collectively " plaintiffs" ) bring this action pursuant to 42 U.S.C. Section 2000d et seq.,42 U.S.C. §§ 1983, 1985, 1986, the First, Fifth and Fourteenth Amendments to the United States Constitution and state law against defendants Center Moriches Union Free School District (" District" ), Center Moriches High School (" High School" ), Center Moriches Board of Education (" Board of Education" ), Dr. Phillip Cicero [1] (" Cicero" ), in his individual and official capacity, Lino Bracco [2] (" Bracco" ), in his individual and official capacity, Michael Cruz [3] (" Cruz" ), in his individual and official capacity, Dr. Bert Nelson [4] (" Nelson" ), in his individual and official capacity, Bill Straub [5] (" Straub" ), in his individual and

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official capacity, Marc Trocchio (s/h/a Marc Trochhio) [6] (hereinafter " Trocchio" ), in his individual and official capacity, Veronica Treadwell [7] (s/h/a Veronica Tredwell) (hereinafter " Treadwell" ), in her individual and official capacity, (hereinafter all defendants except Tom Kretsos collectively the " District Defendants" ) and defendant Tom Kretsos [8], in his individual and official capacity, (" defendant Kretsos" ).[9] The claims relate to events at Center Moriches High School on April 4, 2003, while the infant plaintiffs were students at the school, and the school officials' decisions on that day, and in the time period that followed with respect to the infant plaintiffs. Before the court, on referral from District Judge Mauskopf, are the District Defendants' and defendant Kretsos' motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the undersigned recommends that the district court grant the (i) the motions for summary judgment on the federal claims; and (ii) decline to exercise supplemental jurisdiction over any state claims and dismiss those claims without prejudice.

BACKGROUND

The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are construed in the light most favorable to the non-moving party, except as otherwise noted.[10] See Iannuzzi v. American Mortg. Network, Inc., 727 F.Supp.2d 125, 130-31 (E.D.N.Y.2010); see also Capobianco v. City of New York, 422 F.3d 47, 54-55 (2d Cir.2005).

The Center Moriches Union Free School District (the " District" ) is located in Suffolk County and administers the Center Moriches High School (the " High School" ). (Dist. Defs. 56.1 Stmt. ¶¶ 1-2.) [11] Plaintiffs are Native-American and African-American individuals, and they reside on, and are members of, the Unkechaug Indian Reservation. (Compl. ¶ 1.) During the school year of 2002-2003, the infant plaintiffs were enrolled in the District and attended the High School. (Dist. Defs. 56.1 Stmt. ¶ 16.)

I. Factual Background

a. The April 4, 2003 Altercation on School Grounds

On April 4, 2003, at the beginning of the tenth period of the school day, J.E. observed an argument between two students in the school lobby which continued outside the school. (Pls. 56.1 Stmt. ¶¶ 47, 51, 58-59, 63, 64, 66;

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Brewington Decl., Ex. L at 83-89.) Knowing that a fight was about to happen, J.E. exited the school building, along with a crowd of students, and a melee ensued. ( Id.; Brewington Decl., Ex. J at 56-58.) A fist fight broke out which expanded to include at least five students, including J.E. and R.W., an African-American female student at the High School. ( Brewington Decl., Exs. L at 86-88, 90-92, 97-103; J at 57-59, 61-62.) There were numerous fights occurring outside. (Pls. 56.1 Stmt. ¶ 121.) When J.E. saw R.W. yelling and screaming at her brother C.E. Jr., she took off her shoes, removed her jewelry, and ran over to defend her brother. (Pls. 56.1 Stmt. ¶¶ 72-73; Brewington Decl., Ex. L at 90-96, 102.) J.E. and R.W. exchanged verbal obscenities which led to a physical altercation between them. (Dist. Defs. 56.1 Stmt. ¶¶ 74, 77-80.) J.E. punched R.W. in the face, R.W. fell backwards and her cousin KC caught her. ( Id. ¶¶ 77-81.) J.E.'s brothers C.E. Jr. and S.E. broke up the fight between the girls. (Pls. 56.1 Stmt. ¶ 84; Brewington Decl., Exs. J at 61-64; K at 61-66; O at 26-28.) When J.E.'s sister C.E. arrived at the scene, there was a crowd of students, a lot of movement and chaos outside. (Pls. 56.1 Stmt. ¶ 94.) J.E. had to be restrained by her brother S.E. who pushed her back towards the school building, and C.E. followed them. ( Brewington Decl., Ex. L at 104-06.)

By this point security guards and other District staff were attempting to intervene. (Pls. 56.1 Stmt. ¶ 88; Dist. Defs. 56.1 Stmt. ¶ 88.) In trying to break up the fights outside, security guard Gregory Gates' toe was broken. (Dist. Defs. 56.1 Stmt. ¶ 118.) Upon hearing about the melee, Assistant Principal Cruz ran outside where there were a number of students yelling and challenging each other. (Pls. 56.1 Stmt. ¶¶ 92-93; Dist. Defs. 56.1 Stmt. ¶¶ 92-93.) The administrators, including defendant Bracco, instructed the students to return to the school building. ( Id. ¶¶ 117, 119.) As S.E. brought J.E. back to the school building, security guard Kretsos followed behind S.E., and according to J.E. was saying, " All you bunch of niggers are going to jail. All you bunch of niggers are getting locked up." ( Brewington Decl., Ex. L at 105.)

b. The Altercation Inside the School

Inside the school, there were many students waiting for the late bus in the lobby, as well as a crowd of students, teachers and guards in the hallway. (Pls. 56.1 Stmt. ¶¶ 121-22.) Once inside the crowded lobby the fight between R.W. and J.E. broke out again with them trading swings, tussling and grappling with each other. ( Brewington Decl., Exs. I at 66-68; K at 68-69, 242-43; R at 33.) J.W., R.W.'s sister, joined the fracas which prompted J.E.'s sister C.E. to intervene. ( Id., Exs. R at 33-34; I at 65-66.) Security guard defendant Kretsos attempted to break up the fight between R.W. and J.E. by wedging his body between the combatants. (Dist. Defs. 56.1 Stmt. ¶ ¶ 125-27; Brewington Decl., Exs. K at 66-68, 243-45; R at 33.) Kretsos unsuccessfully tried to separate the girls by pulling R.W. out of the altercation, but this did not stop the fight as the two students continued to battle. (Dist. Defs. 56.1 Stmt. ¶¶ 127-29; Brewington Decl., Exs. I at 68; K at 68-72, 247-48.) When Kretsos told J.E. that the police were called, J.E. demanded, " Why are you calling the police?" (Dist. Defs. 56.1 Stmt. ¶¶ 130-31.) The parties disagree about what transpired next.

According to defendants, J.E. then pushed Kretsos, C.E. hit him in the face and S.E. hit Kretsos in the back of the head as Kretsos put his arms up and tried to push S.E. and C.E. out of the way in an effort to defend himself. (Dist. Defs. 56.1

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Stmt. ¶¶ 134-38, 145; Stern Decl., Ex. Q at 21-22.) Plaintiffs deny that J.E. ever pushed Kretsos but assert that when Kretsos came in between J.E. and R.W. to break up the fight, he tried to pull R.W. out of the tussle, was unsuccessful, and punched J.E. once in the face. (Pls. 56.1 Stmt. ¶ 133; Brewington Decl., Ex. K at 68-72.) According to plaintiffs, when C.E. came towards Kretsos and protested, Kretsos also punched her once in the face, which prompted both C.E. and S.E. to punch Kretsos before he could be pulled away from the pile. (Pls. 56.1 Stmt. ¶¶ 134-38; Brewington Decl., Ex. K at 86-88.) Kretsos sustained injuries on the left and right side of his head. (Dist. Defs. 56.1 Stmt. ¶ 147.) Plaintiffs assert that Kretsos allegedly shouted racial epithets [12] and threats towards the infant plaintiffs during the altercations both inside and outside the High School. (Pls. Ctr. Stmt. ¶¶ 54, 69, 77-80, 99-101; Compl. ¶¶ 30, 39.)

Principal Bracco intervened to control the situation. (Dist. Defs. 56.1 Stmt. ¶ 148.) Bracco got between the plaintiffs and Kretsos, and pushed Kretsos towards the bathroom. ( Id. ¶ 149.) Bracco asked defendant Trocchio for his assistance in trying to control the situation. ( Id. ¶ Bracco and Trocchio moved Kretsos into the girls' bathroom, and Bracco tried to calm him down. ( Id. ¶¶ 151, 154.) Trocchio stayed with Kretsos for a period of time in the girls' bathroom. ( Id. ¶ 155.) J.E. was escorted to Bracco's office. ( Id. ¶¶ 157-58.) By the time Bracco stepped out of the girls' bathroom, the hallway was cleared, coinciding with the presence of the Suffolk County Police in the lobby of the school building. ( Id. ¶¶ 162-63.) S.E., C.E. Jr., and C.E. joined J.E. and Bracco in Bracco's office. ( Id. ¶ 164.)

c. The Aftermath

Linda DeHoyos, a parent of a child in the High School, came into the Principal's Office and offered to take the Edwards children home. ( Id. ¶¶ 176-78.) Bracco allowed DeHoyos to take them and she escorted the Edwards children outside. ( Id. ¶¶ 179-80.) The police approached C.E. Jr. to question him, but C.E. Jr. informed them that he would not to talk to them because he was a minor and his parents were not present, and he advised his brother S.E. not to answer the police's questions for the same reason. ( Id. ¶¶ 184-85.) C.E. Jr. and S.E. went home by bus, and J.E. and C.E. got into DeHoyos' car. ( Id. ¶ 188.) On their way home, J.E. and C.E. saw their cousin Robin Hughes driving towards the High School, and they asked DeHoyos to bring them back to the school. ( Id. ¶ 189.) Once at school, they waited in Hughes' van for their father, Curtis Edwards, Sr. to arrive at the school. ( Id. ¶ 190.) When the infant plaintiffs arrived home, S.E. told his mother, Victoria Edwards, what had transpired and she brought her children back to the High School. ( Id. ¶ 192.) At the school, Bracco, Cruz and Cicero were in the lobby. ( Id. ¶ 193.) The parties, however, dispute whether or not J.E. and her parents accompanied Bracco into his office to discuss the incident. (Pls. 56.1 Stmt. ¶ ¶ 194-97; Dist. Defs. 56.1 Stmt. ¶¶ 194-97.) Once the Edwards family left the High School on April 4, 2003, they did not return that day. (Dist. Defs. 56.1 Stmt. ¶ 198.) J.E., C.E., C.E. Jr. and S.E. were each suspended for five days pending a superintendent's hearing, and several of

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the other students involved in the altercation were suspended as well. ( Id. ¶¶ 199-200.)

d. The Investigation into the Incident

Bracco conducted an investigation into the April 4, 2003 incident, questioning the security guards who were on duty and other staff members and securing written statements from a number of witnesses and participants. ( Id. ¶¶ 205-07.) By Memorandum dated April 7, 2003, Bracco summarized the results of his investigation for Superintendent Cicero. ( Id. ¶ 215.) Cicero suspended defendant Kretsos for thirty days without pay. ( Id. ¶ 221.)

e. Disciplinary Charges

As a result of the April 4, 2003 incident, the District brought disciplinary charges against J.E., C.E., C.E. Jr. and S.E. ( Id. ¶ 225.) In addition, the District brought twenty-eight counts of disciplinary chargers against R.W., and she was suspended for six months. ( Id. ¶¶ 226-27.) S.A. and J.W. were also suspended for fighting in the April 4, 2003 incident. ( Id. ¶¶ 228-29.) Mr. and Mrs. Edwards were notified of the charges by letter dated April 10, 2003. ( Id. ¶ 230.)

f. The Disciplinary Hearings

The infant plaintiffs' disciplinary hearings took place over the course of five days: April 14, 2003, April 30, 2003, May 5, 2003, May 7, 2003 and May 12, 2003, and at the plaintiffs' request, the four disciplinary hearings were held simultaneously. ( Id. ¶¶ 267, 273.) Plaintiffs were permitted to present witnesses and evidence during the hearing and were represented by counsel. ( Id. ¶¶ 268-270.) The District retained defendant Dr. Bert Nelson as hearing officer for the matter. ( Id. ¶ 274.) At the hearing, J.E., C.E., C.E. Jr. and S.E. testified before Dr. Nelson. ( Id. ¶ 287.) In addition, defendants Bracco, Cruz, Trocchio, Treadwell as well as other school staff members, parents and students testified at the hearing. ( Id. ¶ 288.) In making his decision, Dr. Nelson testified that he did not consider anything other than the testimony and exhibits that were presented during the hearing. ( Id. ¶ 342.)

g. Dr. Nelson's Decision

Following the hearings, Dr. Nelson issued a 40-page Hearing Officer Report (the " Report" ) of his findings and recommendations dated May 18, 2003. ( Id. ¶ 345.) Dr. Nelson found that on the afternoon of April 4, 2003, there was a riot at the High School and that the conduct of J.E., S.E. and C.E. on that day reflected their participation in inciting the riot that took place. ( Id. ¶¶ 353, 359, 362.) With respect to J.E., the Report found that she engaged in a verbal and physical altercation with another student; was one of the people who had initiated the physical altercation; did not follow the appropriate directions of the staff; used inappropriate language during the events of April 4, 2003; and continued to engage in a verbal and physical altercation despite directives from District staff to stop. ( Id. ¶¶ 348-54.) With respect to S.E., the Report found that he verbally threatened a security guard; used inappropriate language toward district staff; physically attacked a security guard; and did not follow the appropriate directions of school staff. ( Id. ¶¶ 355-58.) Dr. Nelson found that although C.E. had a limited role in the events, she did attack a security guard. ( Id. ¶ 360.) Dr. Nelson found that C.E. did not follow the directions of the Principal. ( Id. ¶ 364.)

Dr. Nelson concluded that based on the evidence J.E. was guilty of 12 out 14

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charges brought against her; S.E. was guilty of all 10 charges brought against him; C.E. was guilty of 4 of the 6 charges brought against her; and C.E. Jr. was guilty of 2 of the 14 charges brought against him. ( Id. ¶¶ 367-70.) After Nelson rendered a decision as to the charges,[13] he heard evidence with regard to the penalties to be assessed, ...


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