A federal judge from the District of New Jersey has granted summary judgment to that state’s former chairman of board of governors’ committee on intercollegiate athletics. Defendant Mark P. Hershhorn was named in a lawsuit by a former student athlete at Rutgers University as part of the fallout of the scandal involving Rutgers’ former basketball coach.
Plaintiff Derrick Randall was a student at Rutgers and a player on the school’s men’s basketball team from the fall of 2011 to the spring of 2013. Randall suffers from learning disabilities, which was something Rutgers was aware of and had agreed to make special accommodations for, according to the plaintiff.
While Randall was a member of the Rutgers basketball team, co-defendant Michael Rice was the coach. On April 2, 2013, ESPN released a video recording of Coach Rice abusing players of the Rutgers basketball team, including the plaintiff. It was later revealed that Coach Rice had frequently abused members of the team, including Randall, both physically and emotionally, according to the plaintiff.
Randall alleged that members of the Rutgers administration, including Hershhorn, knew of this abuse and failed to take any action to protect Rutgers basketball team players. Randall sued (1) Coach Rice; (2) Rutgers University; (3) Timothy Pernetti, the NCAA Director of Intercollegiate Athletics at Rutgers; (4) James Martelli, the Rutgers’ men’s basketball team assistant coach; (5) Janine Purcaro, the Chief Financial Officer for Intercollegiate Athletics at Rutgers; (5) Hershhorn; and (6) Robert Barchi, the President of Rutgers University, alleging various tort claims and violations of the New Jersey Law Against Discrimination (NJLAD), Americans with Disabilities Act, and his constitutional rights.
As for Hershhorn, Randall alleged that he viewed the video, but “did not take the matter to the full Board of Governors, nor did he take any other action.”
Hershhorn moved to dismiss the following two counts against him: Count Nine, which alleges liability pursuant to the NJLAD; and Count Twelve, which alleges violations of Plaintiff’s substantive due process rights pursuant to 42 U.S.C. § 1983.
The court first considered Count Nine, or that the defendants “engaged in intentional discrimination against the plaintiff because of his protected class, and failed to accommodate his needs despite agreeing to do so.” Hershhorn argued that “he cannot be held liable under the NJLAD because he and Plaintiff are not in an employment relationship. (He) alternatively argued that he cannot be held liable under the NJLAD’s public accommodation section because he is not an ‘owner, lessee, proprietor, superintendent, agent, or employee’ of Rutgers as statutorily required under the NJLAD.”
In considering these arguments, the court zeroed in on “Hershhorn’s alleged act—failure to circulate the video of Coach Rice abusing the plaintiff. … This allegation alone is not sufficient to support the allegation that Hershhorn aided and abetted Coach Rice under the standard espoused by Failla v. City of Passaic, 146 F.3d 149, 158 n.11 (3d Cir. 1998). While the allegations may show that Hershhorn knew of Rice’s conduct and knew it was a breach of his duty, the complaint does not sufficiently address whether Hershhorn assisted or encouraged Coach Rice in any way.” Thus, the court granted the motion to dismiss as it related to Count Nine.
Turning to Count Twelve, or the due process claim, the court considered whether the defendant is entitled to a defense of qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). To pierce that defense, the plaintiff was required to show that the defendant’s actions were particularly egregious.
The plaintiff failed in this respect, unable to show that Hershhorn’s conduct shocks the conscience and thus violated (his) substantive due process rights. Therefore, Plaintiff’s claim does not meet the first prong of Saucier’s qualified immunity test, leading the court to grant summary judgment to the defendant on the remaining count.
Derrick Randall v. Rutgers, The State University of New Jersey, et al., D.N.J.; Civ. No. 13-cv-07354 (FLW)(DEA), 2014 U.S. Dist. LEXIS 160103; 11/14/14
Attorneys of Record: (for plaintiff) Daniel S. Kokhba, Lead Attorney, Kantor Davidoff Namdelker Twomey & Gallanty PC, New York, NY. (for defendants) John James Peirano, Jr., Lead Attorney, Catherine Ida Rose Pontoriero, James Edward Patterson, Mcelroy Deutsch Mulvaney & Carpenter LLP, Morristown, NJ. Steven Backfisch, Lead Attorney, Lindabury, Mccormick & Estabrook, PC, Westfield, NJ. Vito A. Gagliardi, Jr., Lead Attorney, Frank A. Custode, Porzio, Bromberg & Newman, PC, Morristown, NJ.
Brian Brady McEvoy, Lead Attorney, Graham Curtin, Morristown, NJ. Paul H. Zoubek, Lead Attorney, Montgomery, Mccracken, Walker & Rhoads, Cherry Hill, NJ; JANICE G. DUBLER, LOUIS R. MOFFA, JR., MONTGOMERY, Mccracken, WALKER & RHOADS, LLP, CHERRY HILL, NJ.
The original complaint can be found here: https://s3.amazonaws.com/s3.documentcloud.org/documents/889173/derrick-randall-lawsuit.pdf
