                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-2005

Cole v. Montague Bd Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3445




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                                                      NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                       ________________

                             NO. 04-3445
                          ________________

          REGINALD COLE; LAURA COLE; PATRICIA COLE,
                                   Appellants

                                   v.

        MONTAGUE BOARD OF EDUCATION; MARTIN BENNA;
                JOHN J. BIANCHI; LINDA FALKOWSKI;
      LINDA HINES; TIMOTHY W. MCGLYNN; DEBRA OSBORNE;
       THOMAS QUINN; BARBARA J. UTTER; BRIAN A. DUFFY,
             Chief School Administrator; LAUREN AYERS;
          STANLEY J. DUTKUS, SR.; JAMES W. MARION, III;
             KENNETH O'CONNER; JOHN P. SORACCO;
      STEVEN WEINGARTNER; RICHARD INNELA; GENE POLLES,
          Ed.D. Chief School Administrator; BARRY WORMAN,
             County Superintendent of Schools; R. LOEVLIE;
          CRAIG DANA, Montague Board of Education Attorney
               ____________________________________

             On Appeal From the United States District Court
                       For the District of New Jersey
                        (D.C. Civ. No. 03-cv-00922)
              District Judge: Honorable William G. Bassler
             _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                           August 26, 2005

Before: VAN ANTWERPEN, GREENBERG AND NYGAARD, CIRCUIT JUDGES

                        (Filed: August 26, 2005)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Laura and Reginald Cole (“the Coles”) appeal from an order of the United States

District Court for the District of New Jersey dismissing their Amended Complaint.

Finding no error, we will affirm.

                                             I.

       Because the parties are familiar with the relevant facts, which are undisputed, we

need not repeat them here. The Coles and Patricia Cole, the daughter and granddaughter

of Laura and Reginald, respectively, initiated this action pursuant to 42 U.S.C. § 1983

against Barry Worman, County Superintendent of Schools; Raymond Loevlie, a Sussex

County Sheriff’s Officer; and various Montague School Board officials (“School Board”).

The Coles and Patricia filed an Amended Complaint alleging that defendant Worman

defamed the Coles by setting forth a collateral estoppel argument in his motion to dismiss,

and failed to prevent problems in the schools he oversaw as Superintendent. The Coles

alleged that defendant Loevlie forcibly removed Reginald from school property without a

court order, and falsely imprisoned and slandered him. The Coles also alleged that the

School Board (1) banned Reginald and Laura from a public school without a hearing, thus

violating due process, and refused to accept Reginald’s petition for a hearing, therefore

                                            -2-
forcing him to give it to a Superior Court judge; (2) illegally evaluated Patricia without

consent; (3) failed to satisfy New Jersey educational standards for a period of five years;

(4) denied the Coles monetary aid and school choice in violation of the No Child Left

Behind Act; and (5) slandered and defamed the Coles.

       When Worman did not answer the Amended Complaint, the District Court entered

a default against him. Thereafter, Worman filed a motion to dismiss, which the District

Court granted because the Coles failed to make specific factual allegations or delineate

which federal or state laws were violated by Worman’s actions. The District Court also

vacated the entry of default against Worman, finding good cause was shown. Loevlie

filed a motion for summary judgment, which the District Court granted, finding that he is

entitled to qualified immunity because the facts and conclusory allegations raised by the

Coles are insufficient to support their constitutional claims. The School Board filed a

motion for judgment on the pleadings, which the District Court also granted. The District

Court found that the allegations did not amount to a constitutional violation by the School

Board. In addition, the Court found that even if a private cause of action exists pursuant

to the No Child Left Behind Act, the Coles raised no factual allegations to support such a

claim. Finally, because the District Court rejected all the federal claims, it declined to

exercise jurisdiction over the Coles’ pendent state law claims. This appeal followed.1



       1
        The Coles filed a motion for appointment of counsel, which was denied. Because
Laura and Reginald are not attorneys, they may not represent Patricia in federal court.
See Osei-Afriyie v. Medical College of Pennsylvania, 937 F.2d 876, 882-83 (3d Cir.

                                             -3-
                                              II.

       The Coles contend generally that the District Court improperly applied the law in

finding that the defendants did not violate the Coles’ constitutional rights because the

defendants did not deny the allegations set forth in the pleadings. See Br. at 3. As to the

claims against Worman, the Amended Complaint failed to identify conduct by Worman

that amounted to a constitutional violation. Therefore, the District Court properly applied

the law in dismissing the claims against Worman.

       The Coles next contend that defendant Loevlie is not entitled to qualified

immunity. See Reply Br. Government officials are generally shielded from liability for

civil damages unless their conduct violates clearly established statutory or constitutional

rights of which a reasonable person would have known. Smith v. Marasco, 318 F.3d 497,

510 (3d Cir. 2003). Before considering the immunity question, however, the court must

first determine whether there was a violation of a constitutional right at all. Siegert v.

Gilley, 500 U.S. 226, 233 (1991). Here, despite the Coles’ allegations that Reginald was

removed from school property, the record reflects that Officer Loevlie did not seize

Reginald or use physical force when escorting him from the property. Therefore, because

the Coles failed to show that Officer Loevlie violated a constitutional right, the District

Court properly granted Loevlie summary judgment. Furthermore, the Coles have not




1991). Therefore, the Coles are proceeding on appeal only as to their claims. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                             -4-
provided any authority in support of their argument that Officer Loevlie needed a court

order to remove Reginald from school property.

       As to the claim that the School Board violated the Coles’ due process rights by

“illegally” banning them from school property, this contention plainly lacks merit. See

Lovern v. Edwards, 190 F.3d 648 (4th Cir. 1999) (holding that non-custodial parent’s

claim that prohibiting him from entering school property violated due process is so

plainly insubstantial and frivolous as to deprive a federal court of jurisdiction over the

matter). In addition, as the District Court recognized, even if the No Child Left Behind

Act created a private cause of action, the Coles did not allege sufficient facts to support

this claim. Therefore, the District Court applied the correct law in granting the School

Board’s motion for judgment on the pleadings.

       The Coles also contend that the District Court improperly vacated the default

against Worman. See Reply Br. Because the District Court identified good cause to set

aside the default judgment, however, it did not abuse its discretion in doing so. See

United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 197 (3d Cir. 1984). Finally,

because all the federal constitutional claims were correctly dismissed, the District Court

properly declined to exercise supplemental jurisdiction over the Coles’ pendent state law

claims. See 28 U.S.C. § 1367(c)(3).

                                             III.

       We have fully considered all of the arguments raised by the Coles on appeal, and



                                             -5-
find that they lack merit and warrant no further discussion. For the foregoing reasons, we

will affirm the District Court’s judgment.2




       2
         Appellants also filed a motion for leave to file a videotape, which allegedly
shows the defendants violating their civil rights. To the extent these tapes are duplicative
of those filed in the District Court, it is unnecessary to re-file them in this Court. See Fed.
R. App. P. 10(a). To the extent these tapes are not part of the record, the Coles have not
satisfied the requirements for correcting or modifying the record. See Fed. R. App. P.
10(e). Therefore, we deny the motion.

                                              -6-
