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Morgan v. Town of Lexington

United States Court of Appeals, First Circuit

May 23, 2016

CHRISTINE MORGAN, next friend and mother of minor, R.M., Plaintiff, Appellant,
TOWN OF LEXINGTON, MA; LEXINGTON PUBLIC SCHOOLS; DR. PAUL ASH, Superintendent, in his official and individual capacities; DR. STEVEN FLYNN, Principal, in his official and individual capacities, Defendants, Appellees

         As Corrected May 25, 2016.


         Timothy M. Burke, with whom Jared S. Burke and Law Offices of Timothy M. Burke were on brief, for appellant.

         John J. Cloherty III, with whom Pierce, Davis & Perritano, LLP was on brief, for appellees.

         Before Lynch, Kayatta, and Barron, Circuit Judges.


         LYNCH, Circuit Judge.

          The district court granted a motion to dismiss brought by the Town of Lexington, Massachusetts (" Lexington" ), Lexington Public Schools (" LPS" ), its superintendent, and a principal (collectively " the defendants" ), ending a civil rights suit filed by a mother, Christine Morgan, who complained that the defendants inadequately responded to the bullying of her son, R.M., by his middle school peers, in violation of his federal substantive due process rights. Five pendant state law claims were also dismissed, and a motion to add a second federal law claim under Title IX was denied.

         The complaint relied upon a theory once suggested by the United States Supreme Court that when the state creates a danger to an individual, an affirmative duty to protect might arise. Noting that this court has never squarely accepted such a theory, not having been presented with facts supporting a claim, the district court held that the facts presented here simply do not give rise to a substantive due process violation. We agree. We also agree that the conduct alleged does not fall within the scope of Title IX, which is concerned with actions taken " on the basis of sex," see 20 U.S.C. § 1681(a), and not undifferentiated bullying. We affirm.


         We draw the facts from Morgan's original and amended complaints " and the documents incorporated therein." Ouch v. Fed. Nat'l Mortg. Ass'n, 799 F.3d 62, 64 (1st Cir. 2015). Where the complaint characterizes a document, we refer to the document. We do not attempt to cover all the facts, only those directly pertinent to the issues.

         In the fall of 2011, R.M. was a twelve-year-old student at a middle school located in Lexington, MA. On or about October 5, 2011, several students pulled R.M. to the ground and beat him, repeatedly kicking and punching him in the head and stomach. This was captured on a video given to the administration. The school investigated. The next day, the principal, Steven Flynn, discussed the incident with Morgan. He told Morgan that the incident involved a group of students, known as the " Kool-Aid Club," and that R.M. had at first agreed to the beating by the students as part of an initiation into their group. He said that R.M. was not the aggressor and that R.M. was not in trouble but that he was not happy with R.M. because he " delay[ed] the investigation." He told Morgan that because of R.M.'s conduct during the investigation, R.M. would not be allowed to participate in an upcoming school track meet.

         On October 17, one of the students who had been part of the Kool-Aid Club incident said to R.M., " You (R.M.) dummy, you got us in trouble." R.M. was told they would " get him back" for getting them in trouble. R.M. reported the statements to the assistant principal, who told him to stay away from those students.

         During the fall of that year, students repeatedly called R.M. " Mandex Man," " thunder thighs," and " hungry hippo." R.M. was " pushed, tripped, punched or verbally assaulted while walking in school hallways." R.M. was also " table topped," in which " one person gets down on all fours behind the victim to push the victim behind the knees, and then one or two other individuals push the victim so that the victim falls backwards." " [O]n multiple occasions R.M. had his pants pulled down in front of other students (male and female), while on school grounds . . . ." On December 21, R.M. was also pushed into a locker, " which caused him to break his watch." [1]

         On December 22, 2011, Morgan emailed Principal Flynn that R.M. did not feel safe at school and was scared to report bullying for fear of retaliation by his peers. She referred to the school's anti-bullying policy and the state's anti-bullying statute.[2] The complaint alleges that Principal Flynn replied by email that the school could not investigate the allegations unless R.M. himself reported the bullying. What Principal Flynn actually said in the reply email was, " Is it possible for you to bring [R.M.] in this morning to meet with [school administrators] to hear from him the concerns? This will enable us to take action on the issues."

         On December 23, Morgan met with school officials and reported new information that R.M. had recently given her. This included R.M.'s general fear of retaliation for having reported some students and specific retaliation from one of the boys who had attacked him. She gave the school sufficient information to start to investigate the allegations. The ...

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