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
Corrected May 25, 2016.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. Denise J. Casper, U.S. District Judge.
M. Burke, with whom Jared S. Burke and Law Offices of Timothy
M. Burke were on brief, for appellant.
Cloherty III, with whom Pierce, Davis & Perritano, LLP was on
brief, for appellees.
Lynch, Kayatta, and Barron, Circuit Judges.
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.
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.
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.
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.
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.
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." 
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. 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
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