United States District Court, D. Massachusetts
NOELLE-MARIE HARRINGTON, by her mother and next friend, CORRINE HARRINGTON, Plaintiffs,
CITY OF ATTLEBORO, RICHARD GEORGE, DOUGLAS SATRAN, PATRICIA KNOX, MARK DONNELLY, JEFFREY NEWMAN and ELIZABETH YORK, Defendants.
MEMORANDUM AND ORDER
DENISE J. CASPER UNITED STATES DISTRICT JUDGE
Plaintiff Noelle-Marie Harrington (“Noelle”), by her mother and next friend Corrine Harrington (“Corrine”) (collectively, “Plaintiffs”), have filed this lawsuit against defendant City of Attleboro (“Attleboro”) and defendants Richard George (“George”), Douglas Satran (“Satran”), Patricia Knox (“Knox”), Mark Donnelly (“Donnelly”), Jeffrey Newman (“Newman”) and Elizabeth York (“York”) (collectively, the “Administrators”). Plaintiffs allege violations of Title IX, 20 U.S.C. § 1681 against Attleboro (Count I), violation of Noelle’s Equal Protection rights under the Fourteenth Amendment against Attleboro (Count II) and against the Administrators (Count III) pursuant to 42 U.S.C. § 1983 and negligence claims against Attleboro (Count IV). D. 8. Plaintiffs allege violations of the Declaration of the Rights of the Commonwealth of Massachusetts against Attleboro and the Administrators (Count V) and violations of Mass. Gen. L. c. 151C, § 2 (Count VI), Mass. Gen. L. c. 272, § 98 and c. 76, § 5 (Count VII) and Mass. Gen. L c. 93, § 102 (Count VIII) against Attleboro. Id. Corrine also brings a claim for loss of consortium against Attleboro and the Administrators (Count IX). Id. Defendants have moved to dismiss the complaint. D. 12. For the reasons stated below, the Court ALLOWS in part and DENIES in part the motion.
II. Standard of Review
On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (internal citation omitted). The Court reads the complaint “as a whole” and must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory allegations. Id. Factual allegations must be accepted as true, while conclusory allegations are not credited. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation mark omitted).
The Court will dismiss a pleading that fails to include “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). To avoid dismissal, a complaint must provide “‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” García-Catalán, 734 F.3d at 102 (quoting Fed.R.Civ.P. 8(a)(2)). Labels and conclusions or “‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). The Court draws on its “judicial experience and common sense” in determining whether a claim crosses the plausibility threshold. García-Catalán, 734 F.3d at 103 (citation omitted). “This context-specific inquiry does not demand ‘a high degree of factual specificity.’” Id. (citation omitted).
III. Factual Background
The following allegations are from Plaintiffs’ complaint, D. 8, and are accepted as true for the purpose of considering the motion to dismiss.
Between 2008 and 2010, Noelle attended Brennan Middle School in Attleboro, Massachusetts (“Brennan MS”) which was operated by Attleboro. Id. ¶¶ 10, 28. While Noelle was at Brennan MS, another student identified as “Thomas C.” repeatedly called Noelle names such as “slut, ” “whore” and “fat ass.” Id. ¶ 29. At one point, Thomas C. told Noelle that “the world would be a better place without you in it” and asked “why don’t you just die already?” Id. Two other students at Brennan MS identified as “Chris H.” and “Cam H.” called Noelle “bitch, ” “slut” and “whore.” Id. ¶ 30. Chris H. and Cam H. would regularly taunt Noelle and ask “will you go out with me?” Id. When Noelle would say “no” Chris H. and Cam H. would call her “dyke” and “faggot.” Id. Plaintiffs notified employees at Brennan MS, including principals George and Satran, assistant principals Knox and Donnelly and school psychologist Raymond Lamore (“Lamore”), of her peers’ conduct. Id. ¶ 31. Noelle also sustained injuries as a result of certain physical assaults by one of these fellow students, Thomas C., including bruising, a sprained ankle, and a fractured wrist, id. ¶¶ 32-36, and Plaintiffs notified George, Satran, Knox, Donnelly and Lamore, of same. Id. ¶ 37. Plaintiffs were told that Lamore, the Brennan MS psychologist and special needs coordinator, id. ¶ 16, and Knox, the assistant principal, id. ¶ 13, would “deal with” the problems created by Thomas C., Chris H., and Cam H, id. ¶ 38. Plaintiffs contacted the Attleboro Police Department regarding Noelle’s issues with other students at Brennan MS, but the police responded that this was a school issue and did not intervene. Id. ¶ 40.
Starting in 2010, Noelle began at Attleboro High School (“AHS”). Id. ¶¶ 11, 41, 45. As a matter of policy, Brennan MS did not transfer the records of the conduct Plaintiffs had complained of to AHS, id. ¶¶ 41-42, and Corrine did not have access to, or was told the contents of, those records, id. ¶ 50. At AHS, Noelle and Thomas C. were placed in the same freshmen classroom. Id. ¶ 46. By February 2011, Thomas C. was poking Noelle in the back and calling her “dyke, ” “faggot, ” “whore, ” “bitch” and “slut.” Id. ¶ 47. Plaintiffs notified the employees of AHS, including York, the assistant principal at the time, and Lamore, who essentially served as a guidance counselor for the situation, of this conduct. Id. ¶ 48. York claims to have spoken with Thomas C. about such conduct and that it would not be tolerated, but the conduct continued. Id. ¶ ¶ 49, 51.
In May 2011, another AHS student, identified as “Becca M., ” began calling Noelle names such as “slut, ” “whore” and “fat ass.” Id. ¶ 52. AHS employees, including York, were made aware of such conduct. Id. ¶ 54. Later in October 2011, Noelle sprained her ankle in an automobile accident and had to walk on crutches in school. Id. ¶ 55. Certain unidentified students at AHS taunted Noelle and said that the only reason she was on crutches was because her body could not support her weight. Id. ¶ 56. Noelle notified AHS employees, including York, of such conduct. Id. ¶ 57. York informed Plaintiffs that she spoke with the students who witnessed such conduct, but was unable to identify the perpetrators. Id. ¶¶ 58-59. In January 2012, similar conduct continued and Noelle suffered a panic attack when she saw Chris H. and Cam H. at the Registry of Motor Vehicles. Id. ¶ 60. Noelle failed her driver’s license test. Id.
On January 11, 2012, a “Safety Plan” was prepared to use while Noelle was at AHS. Id. ¶ 61. The plan acknowledged Noelle’s right to report instances of harassment to school administrators and to access the nurse “in times of stress.” Id. ¶ 62. The plan also allowed Noelle to leave class early to get to her next class and avoid the students she had issues with in the hallways. Id.
In February 2012, Thomas C. followed Noelle and some of her family members from the library to Plaintiffs’ home. Id. ¶ 66. Corrine told Thomas C. to leave the property or she would call the police. Id. Shortly thereafter, Corrine visited AHS and informed York of Thomas C.’s conduct. Id. ¶ 67. York said that Thomas C.’s conduct would not be addressed as it occurred outside of school and on Plaintiffs’ property. Id. ¶ 68.
Also in February 2012, Noelle and Chris H. were placed in the same class. Id. ¶ 63. Plaintiffs informed employees of AHS of Noelle’s prior issues with Chris H. and Noelle’s schedule was rearranged. Id. ¶¶ 64-65. Friends of Chris H., identified as “Ollie G.” and “Andrew M., ” remained in the class with Noelle. Id. ¶¶ 65, 71-72. In February 2012, Andrew M. shined a laser pointer into Noelle’s eye and asked repeatedly “why are you mad?” Id. ¶ 71. The classroom teacher sent Andrew M. out of the class, but he passed the laser pointer to Ollie G. who continued to shine the laser pointer into Noelle’s eyes. Id. ¶¶ 71-72. After class, Noelle sought treatment from the school nurse and explained what had happened. Id. ¶ 73. The school nurse contacted Corinne who in turn contacted York who did not provide more information about the incident. Id. ¶ 74. Plaintiffs attempted to file a complaint with the Attleboro Police Department, but were told that the school police officer would have to handle the complaint. Id. ¶ 76. It is further alleged that the school police officer failed to respond to Plaintiffs’ complaints regarding same. Id. Plaintiffs were later informed that Andrew M. was suspended for three days. Id. ¶ 77.
Following Andrew M.’s suspension, his friends Ollie G. and a student identified as “Nakia S.” began calling Noelle a “snitch” and telling her that “the world would be better off without dykes like her in it.” Id. ¶ 78. When Andrew M. was injured during his suspension, Nakia S. blamed Noelle. Id.
During these incidents in February 2012, Corrine discovered a Facebook post by Noelle stating that “when the bullying got worse, I thought about whether or not people would regret the things they did if I committed suicide.” Id. ¶ 80. Corrine brought a printed copy of the post and met with employees at AHS, including York. Id. ¶ 81. York told Corrine that the school could not do anything and that Noelle needed professional help. Id. ¶ 82. Corrine informed employees at AHS, including York, that Plaintiffs wanted to transfer Noelle to another school, but they did not assist in placing Noelle. Id. ¶ 83. Corrine then brought Noelle to her pediatrician who referred Noelle to a crisis center for evaluation. Id. ¶ 84. The “crisis team” instructed Corrine not to return Noelle to AHS, and Noelle was registered at the Westwood Lodge day treatment center for psychotherapeutic care. Id. ¶¶ 84-86, 88. Corrine formally withdrew Noelle from AHS on March 1, 2012. Id. ¶ 87.
IV. Procedural History
Plaintiffs instituted this action in Bristol Superior Court on February 27, 2015. D. 8. Defendants removed the action to federal court on June 23, 2015. Id.; D. 1. Defendants have now moved to dismiss the complaint. D. 12. The Court heard the parties on the pending motion and took the matters under advisement. D. 27. Following the hearing, Defendant Douglas Satran filed an assented to motion to join Defendants’ motion to dismiss, D. 29, which the Court granted, D. 30.
A. Count I - Title IX
In Count I, Noelle alleges violations of Title IX against Attleboro for failing to protect her from peer-on-peer sexual discrimination and harassment. D. 8 ¶ 107. Accepting Plaintiffs’ allegations as true, Plaintiffs states a plausible Title IX claim.
Title IX provides, in relevant part, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). To state a ...