                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           ________________

                                 No. 15-2662


      GEORGE ANDREW ROSS, SR.; ANGELA ROSS, individually and as
        Guardians Ad Litem for infant George Andrews Ross II, an infant,

                                                            Appellants

                                       v.

       BOARD OF EDUCATION GREATER EGG HARBOR REGIONAL
 HIGH SCHOOL DISTRICT; MR. ROCKMAN; MICHAEL WILBRAHAM; BRIANA
FORBEY; DIAMOND PILGRIM; GALLOWAY TOWNSHIP POLICE DEPT.; KEVIN
  JORGENSEN; JOHN DOE I THROUGH JOHN DOE XII, Fictitious Names J/S/A;
       GREATER EGG HARBOR REGIONAL HIGH SCHOOL DISTRICT;
                DONALD PILGRIM; DYNASTY PILGRIM
                         ________________

                  Appeal from the United States District Court
                          for the District of New Jersey
                    (D.C. Civil Action No. 1-11-cv-06490)
                   District Judge: Honorable Noel L. Hillman


                  Submitted Under Third Circuit LAR 34.1(a)
                               June 16, 2016

      Before: AMBRO, NYGAARD, and VAN ANTWERPEN, Circuit Judges

                         (Opinion filed: July 12, 2016)
                                      ________________

                                          OPINION *
                                      ________________

AMBRO, Circuit Judge

       Plaintiffs George Andrew Ross Sr., Angela Ross, and George Andrew Ross II

appeal from the District Court’s grant of summary judgment in favor of Defendants. For

the reasons that follow, we affirm.

                                              I.

       George Andrew Ross II was a sophomore at Absegami High School in Galloway

Township, New Jersey. On the morning of March 30, 2009, Ross got into a physical

confrontation with a senior, Donald Pilgrim. Apparently Pilgrim spoke “fighting words”

to Ross in a school hallway over Ross’s then-girlfriend, Briana Forbey. Pilgrim and Ross

began to fight, with Ross claiming that Pilgrim was the initial aggressor. Earnest

Rockelman, a teacher, broke up the fight. Ross then left the scene (there is some dispute

over whether Rockelman told Ross to stay put) and Michael Wilbraham, a vice-principal,

escorted Pilgrim to the principal’s office.

       Minutes after the first fight, Ross ran into Pilgrim’s two sisters, Diamond and

Dynasty Pilgrim, in another school hallway. The Pilgrim sisters began to taunt Ross and

words escalated to punches. At this point, Donald Pilgrim managed to break free from

Wilbraham’s grasp and ran toward the scene of the second fight. Donald Pilgrim



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                              2
punched Ross in the face and all three of the Pilgrim siblings proceeded to kick Ross

while he was laying on the ground. School staff members, along with Officer Kevin

Jorgensen, the school’s resource officer, arrived and broke up the second fight. Ross

suffered a fractured eye socket and bruises and cuts to his face and body.

       The Pilgrims were charged with aggravated assault and harassment. They pleaded

guilty and were ordered to pay Ross restitution. Ross was charged with simple assault

and disorderly conduct. These charges were dismissed after the school chose not to

pursue them. The school suspended all of the students involved in the fight, with Ross

serving a nine day out-of-school suspension.

       Ross’s parents filed suit in state court on their son’s behalf, naming as Defendants

the Greater Egg Harbor Regional High School District, Rockelman, Wilbraham, and

Officer Jorgensen. 1 Defendants removed the case to federal court. After discovery, they

moved for summary judgment and the District Court granted the motion. The complaint

contained constitutional, contract, and tort claims, but in essence the family alleged that

Defendants: (1) negligently failed to protect Ross from the fight; (2) imposed an

unjustified school suspension; (3) sought criminal charges against Ross out of malice;

and (4) defamed Ross. The District Court found all of these claims meritless and

unsupported by the record.



1
  The Ross family also named the Pilgrims and Forbey as Defendants. These Defendants
did not appear in the litigation and the District Court dismissed without prejudice all
claims against them because the Ross family either failed to serve them with a copy of
the complaint or failed to prosecute the claims. The family has not challenged this result
on appeal.
                                              3
                                             II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have

jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s grant of summary

judgment is plenary. Chavarriaga v. New Jersey Dept. of Corr., 806 F.3d 210, 218 (3d

Cir. 2015) (citation omitted).

                                             III.

       Beginning with the negligence claim, we agree with the District Court that

Defendants did not owe Ross a duty of care to protect him from the dangers of a physical

altercation with the Pilgrims. The existence of a duty of care under New Jersey law is a

question for the court. Jerkins ex rel. Jerkins v. Anderson, 922 A.2d 1279, 1284 (N.J.

2007). Educators have a duty to protect “children in their charge from foreseeable

dangers, whether those dangers arise from the careless acts or intentional transgressions

of others.” Id. at 1285 (quoting L.W. v. Toms River Reg’l Schs. Bd. of Educ., 915 A.2d

535, 550 (N.J. 2007)) (emphasis added) (internal quotation marks omitted). As the Court

noted, the danger in this case was not foreseeable to Defendants because Ross had no

prior relevant history with the Pilgrims, who had a limited disciplinary record for

fighting. The Ross family claims that the first fight should have made the second fight

foreseeable. But Ross voluntarily left the scene after the first fight and it is undisputed

that Defendants were not present when the second fight started. In these circumstances,

the second fight was not a foreseeable consequence of anything Defendants did (or failed

to do) that day.



                                              4
       We also agree with the District Court that Defendants acted within their discretion

in suspending Ross for nine days. Absegami High School had a zero tolerance policy of

no physical contact between students, and it is undisputed that Ross violated that policy

by fighting with Donald Pilgrim. The family nonetheless claims that the suspension

violated a dizzying array of constitutional rights, including the First, Fourth, and Fifth

Amendments to the U.S. Constitution and the right to attend public school under the New

Jersey Constitution. It is unclear whether each of these constitutional claims was

properly presented to the District Court. We are content to say, however, that any claims

based on the suspension are unpersuasive because the suspension was justified under

school policy and there is no evidence that Defendants failed to follow the state law

procedures for imposing a suspension. See N.J. Admin. Code § 6A:16-7.2.

       Next, we conclude that the District Court was right to deny the malicious-

prosecution and abuse-of-process claims related to the criminal charges. Ross was

charged with simple assault and disorderly conduct, but the charges were later dismissed.

A malicious-prosecution or abuse-of-process claim requires, among other things, that the

decision to pursue charges was motivated by malice and that there was an absence of

probable cause to prosecute. LoBiondo v. Schwartz, 970 A.2d 1007, 1022 (N.J. 2009).

The Ross family has failed to produce any evidence of malice, and the undisputed facts

support a finding of probable cause because Ross admitted to getting into a fight with

Pilgrim.

       Finally, summary judgment was warranted on the defamation claim because the

family failed to identify the particular statement Defendants made that was allegedly

                                              5
defamatory. See DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J. 2004) (“[T]he elements

of a defamation claim are: (1) the assertion of a false and defamatory statement

concerning another; (2) the unprivileged publication of that statement to a third party; and

(3) fault amounting at least to negligence by the publisher.”) (citation omitted). To the

extent the family is arguing that the suspension and criminal charges count as defamatory

statements, there is no evidence that Defendants made any false representations in

suspending Ross or by initially pursuing criminal charges. 2

                                    *   *    *   *    *

       For these reasons, we concur with the well-reasoned decision of the District Court

and affirm its judgment.




2
  Having concluded that summary judgment was appropriate on all claims, we need not
address the remaining arguments on appeal. These include questions of immunity under
the New Jersey Tort Claims Act and the School District’s liability for the actions of its
employees, as well as the availability of economic damages and attorney’s fees and costs.

                                             6
