United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOC. NO. 9)
Leo T. Sorokin United States District Judge
Plaintiff John Doe (“John”) brings this action against Defendants Town of Wayland (“Wayland”), The Education Cooperative (“TEC”), Marlene Moskowitz-Dodyk (“Moskowitz-Dodyk”), Mary Moes 1-5 (“Mary Moes”), and Michael Moes 1-5 (“Michael Moes”) (collectively “Defendants”). Doc. No. 7 at 14-43. The allegations center around Defendants’ role in, and response to, sexual abuse John suffered at the hands of another individual, Christopher Coe (“Coe”). See id. After John filed the operative Amended Complaint in Middlesex County Superior Court, Wayland, TEC, and Moskowitz-Dodyk removed the case to this Court. Doc. No. 1. Those Defendants then moved to dismiss for failure to state a claim. Doc. No. 9. John opposed the motion, Doc. No. 13, and the Court held a hearing on the motion. See Doc. No. 16. After careful consideration of the parties’ briefs and arguments, the motion is ALLOWED IN PART and DENIED IN PART.
TEC, which consists of several school districts, “is an educational collaborative” established under Massachusetts Law. Doc. No. 7 ¶ 4. It “was formed to provide services, including special education services, to member districts and the education community as a whole.” Id. ¶ 8. During this time, Moskowitz-Dodyk was a Wayland Public Schools administrator. Id. ¶ 6. She held several roles “related to special education and guidance, including Out of District Coordinator, ” id. ¶ 14, and she “had decision-making power in the Individualized Education Program (IEP) of each child at Wayland High School and authority to decide which students attended the TEC program.” Id. ¶ 15. The Mary Moes and Michael Moes were additional employees of either Wayland or TEC. Id. ¶ 18.
TEC and Wayland had a contract with each other, whereby TEC provided programming and personnel at multiple Wayland Public Schools, including Claypit Hill Elementary School and Wayland High School. Id. ¶¶ 9, 10, 13. “The contract calculated rates for services based on the type of programming, minimum number of students in a particular program, and required payments beyond the termination date if a student terminated his or her participation in TEC programming.” Id. ¶ 19. If a particular student withdrew from TEC programming, Wayland would still owe TEC money for a portion of the un-provided services. See id. ¶ 41. Wayland would also need to pay for a new placement, even if more expensive, for any student who left a TEC program. See id. ¶ 53. If a certain amount of students withdrew from TEC’s programming, Wayland would incur a higher rate for remaining students. Id. ¶ 42.
In 1995, when he was fifteen years old, Coe sexually abused two boys. Id. ¶ 24. The next year, Coe enrolled as a student at TEC’s Learning and Vocational Center (“LVC”) program, which TEC had set up at Wayland High, in 1996. Id. ¶¶ 20, 25. When he enrolled, Coe was on probation for the prior sexual abuses. Id. ¶ 25. Staff for Wayland and TEC, including Moskowitz-Dodyk (collectively “Staff”), “were aware of Coe’s history of sexually abusing children.” Id. ¶ 27. Accordingly, they “instituted a policy that required employees to supervise Coe at all times.” Id. ¶ 28. On at least two occasions between 1998 and 1999, Coe sexually abused, on school grounds, “a female student with a developmental disability” named Rachel Roe (“Rachel”). Id. ¶ 39. After discovering this abuse, Staff “failed to notify any parents, include [sic] the victim’s parents, and did not remove Coe from TEC’s LVC program or alter their supervision of Coe.” Id. ¶ 40.
B. The Coe-Philip Friendship
While at LVC, Coe met John’s older brother, Philip. Id. ¶ 29; see ¶ 21 (identifying Philip as John’s older brother). “Staff actively encouraged the friendship between Coe and Philip.” Id. ¶ 30. This encouragement manifested itself in meetings various Staff members, including Moskowitz-Dodyk, held with John’s parents, Sarah and Robert. Id. ¶¶ 31, 32. Staff, including Moskowitz-Dodyk, asserted at these meetings that Philip “would benefit from a closer friendship with Coe.” Id. ¶ 32. Staff, including Moskowitz-Dodyk, recommended that Philip and Coe “spend time with one another outside of school and at the Doe home, ” id. ¶ 33, and described Coe as “both ‘a good kid’ and ‘good with kids.’” Id. ¶ 34. Staff, including Moskowitz-Dodyk, knew about Philip’s young siblings, including John, yet they neither informed Sarah and Robert about Coe’s sexual misconduct with children, id. ¶ 35, nor recommended any supervision when Coe was either with Philip or at the Doe home. Id. ¶ 36. When Philip’s parents considered moving Philip to a different program, Moskowitz-Dodyk, contending that “Philip’s friendship with Coe was important and removing Philip would end this friendship, ” implored them to keep him at LVC. Id. ¶¶ 49, 50.
C. Coe’s Abuse
Staff, including Moskowitz-Dodyk, knew that based off their encouragement, “Sarah and Robert allowed Coe to spend time at their home.” Id. ¶ 37. This encouragement continued even after Staff learned about Coe’s sexual abuse of Rachel. Id. ¶ 43. In 1998, shortly after he began sexually abusing Rachel, Coe began sexually abusing John. Id. ¶ 44, 45. John was then four years old. Id. ¶ 45. Coe abused John on multiple occasions, the majority of which “occurred at the Doe home when Coe visited Philip.” Id. ¶ 46. At least three instances of abuse occurred after the fall of 1999, when John began kindergarten at Claypit Hill. Id. ¶¶ 55-56. “Acts of sexual abuse included masturbation and penis to buttocks contact.” Id. ¶ 57. “The abuse only ended after six-year-old John reported the abuse to a family friend who alerted John’s family on July 26, 2000.” Id. ¶ 58. Upon hearing this, Sarah immediately went to the Wayland Police Department, id. ¶ 59, and on May 22, 2001, Coe pled guilty in Framingham District Court to four counts of Indecent Assault and Battery on a Child Under 14. Id. ¶ 60. He received a sentence of four years of probation, and had to register as a level two sex offender. Id. ¶ 61.
From July 2000 (when Sarah reported Coe’s abuse) until April 2001, Coe, along with his brother and friends, “harassed, threatened, and bullied” the Does. Id. ¶ 62. John had knowledge of this. Id. ¶ 63. In the summer of 2000, Coe, “stating that he would ‘turn Philip into a locker stiff, ’” threatened Philip’s life. Id. ¶ 64.
D. Initial Responses
Sarah, fearing for her family’s safety, contacted several school personnel. Id. ¶ 65. She first spoke with Maxine Roberts (“Roberts”) and Dayna Hutchings, both TEC employees. Id. ¶ 66. Roberts knew about Coe’s other victims. Id. ¶ 67. Sarah told them about Coe’s abuse of John and the threats to her family, and she “asked that they remove Coe from the TEC program.” Id. ¶¶ 68, 69. TEC neither removed Coe nor offered assurances of protection for Philip. Id. ¶ 70.
Sarah next told Moskowitz-Dodyk about Coe’s threats, id. ¶ 71, and she too “refused to remove Coe or provide assurances for Philip’s safety.” Id. ¶ 72. When Sarah expressed particular concern about Coe remaining at LVC because the program resided in the same building as a preschool, id. ¶ 73, “Moskowitz-Dodyk told Sarah not to talk about Coe’s abuse of children because it was unfair to John.” Id. ¶ 75.
Sarah subsequently escalated her complaints of Coe’s abuse of John and threats to her family to the Wayland High principal, id. ¶ 77, who “also refused to remove Coe or offer assurances for Philip’s safety despite notice and knowledge of Coe’s sexual abuse of children.” Id. ¶ 78. Finally, in September 2000, Sarah spoke with Gary Burton, Superintendent of Wayland Public Schools, id. ¶ 79, and after this discussion, Coe was removed from LVC. Id. ¶ 80. During this time, a Wayland High employee who worked with special education students “told Sarah that Staff knew about Coe’s history of abusing children, Coe abused Rachel on school grounds, and that Staff were not permitted to discuss Coe’s abuse of children with anyone, including Rachel’s parents, who were unaware of the sexual abuse of their daughter.” Id. ¶ 81. Shortly after that conversation, that employee lost her job. Id. ¶ 82.
E. Subsequent Responses
John began receiving therapy in July 2000. Id. ¶ 83. John’s therapist diagnosed him with Post-Traumatic Stress Disorder (“PTSD”), stemming from Coe’s abuse. Id. ¶¶ 83-84. John’s symptoms included “refus[ing] to sleep alone, suffer[ing] from nightmares, and beg[innig to] wet the bed.” Id. ¶ 85. John’s therapist also told Sarah and Robert that “there were more instances of abuse than John indicated to his family and police.” Id. ¶ 86.
Sarah told Claypit Hill about John’s PTSD diagnosis, and Claypit Hill informed her it would keep this diagnosis in John’s file, which would last throughout his time at Wayland Public Schools. Id. ¶ 87. In or around 2006, John, now in middle school, both showed signs of depression and experienced a decline in his academic performance., id. ¶¶ 89-90, and by the time he began at Wayland High School as a ninth-grader in 2009, “[h]e could not concentrate and started to fail classes.” Id. ¶ 91.
Sarah and Robert subsequently spoke with John’s guidance counselor. Id. ¶ 92. The guidance counselor informed them that “school staff did not know about John’s PTSD diagnosis, ” id., and recommended establishing an Individualized Education Plan (“IEP”) for John. Id. ¶ 93. Sarah and Robert had a meeting to set up an IEP with Staff, including Moskowitz-Dodyk. See id. ¶ 96. They brought a copy of John’s PTSD diagnosis to this meeting, id. ¶ 94, and explained that PTSD inhibited John’s focus at school. Id. ¶ 95. Staff, including Moskowitz-Dodyk, resisted John’s PTSD diagnosis at this meeting, and declared a need to test him. Id. ¶ 96. At another meeting held after the testing, Staff, including Moskowitz-Dodyk, rejected the PTSD diagnosis, instead stating that John had a communication problem. Id. ¶ 97. They refused to include any mention of PTSD in John’s IEP. Id. ¶ 99.
By fall of 2010, John had not improved, and so “Staff, including Moskowitz-Dodyk, informed Sarah and Robert they needed to send John to the TEC program in Newton, Massachusetts.” Id. ¶ 100. Sarah and Robert opposed this, noting that Coe himself was a TEC student when he abused John. Id. ¶ 101. Instead, they wanted to send John to a therapeutic school for treatment and academic support for his PTSD. Id. Staff refused this suggestion, instead sending John to the TEC program, but promising that he would begin therapy immediately thereafter. Id. ¶ 102. John did not receive the therapy, however, id. ¶ 103, and, in response to inquiries from Sarah, the school said that the need for therapy had to “be written into John’s IEP.” Id. ¶ 104.
Sarah had another meeting in winter 2011. Id. ¶ 107. She addressed John’s lack of treatment, and Staff, including Moskowitz-Dodyk, informed her that “they did not believe John suffered from PTSD, but alleged he smoked marijuana.” Id. ¶ 108. Even though John had no discipline problems at school from drug use, id. ¶ 110-his only behavior problems at school “were absences due to PTSD symptoms, ” id. ¶ 111-Staff insisted that marijuana use caused John’s academic troubles. Id. ¶ 109. While Staff agreed to include a summary of Coe’s sexual abuse in John’s IEP, they still would not add the PTSD diagnosis. Id. ¶ 112. The summary, making no reference to PTSD or any impact on John’s academic performance, only ...