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Doucette v. Jacobs

United States District Court, D. Massachusetts

January 17, 2018

RACHEL DOUCETTE, et al., Plaintiffs,
v.
CAROL JACOBS, et al., Defendants.

          ORDER

          Judith Gail Dein United States Magistrate Judge

         MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS

         I. INTRODUCTION

         The plaintiffs, Rachel and Michael Doucette, are the parents of a severely disabled child, B.D., who attended the Georgetown Public Schools (“GPS”) from age three until he was able to obtain an out-of-district placement at age six. B.D. attended GPS under an Individualized Education Plan (“IEP”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”) and the Massachusetts Special Education statute, Mass. Gen. Laws ch. 71B. The Doucettes have brought this action individually and on behalf of their son, alleging that B.D. suffered serious physical and emotional harm, including five stress-induced, life-threatening, tonic-clonic seizures, due to the defendants' failure to provide him with appropriate services in school, in violation of his federal and state law rights. The seizures allegedly stopped once B.D. was removed from the Georgetown schools, and the plaintiffs are seeking monetary damages only against the entities and individuals involved in providing B.D. services while he was at GPS.[1]

         In addition to asserting state law claims for intentional infliction of emotional distress (Count I), negligence (Count II), loss of consortium (Count III), and negligent infliction of emotional distress (Count VI), [2] in their Amended Complaint (Docket Nos. 20-2 at 6-15, and 20-3) (“Am. Compl.”), the plaintiffs have alleged a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), against GPS, the School Committee, and the Town (Count IV), and a violation of 42 U.S.C. § 1983 against all defendants (Count V). The Rehabilitation Act claim is based on the plaintiffs' contention that “[t]he defendants' refusal to permit B.D. access to his service dog in his educational setting was illegal disability-based discrimination that violated Section 504.” (Am. Compl. ¶ 104). In support of their § 1983 claim, the plaintiffs challenge, inter alia, the defendants' failure to “evaluate[] the extent of B.D.'s visual impairment to determine the implication on his fine motor skills, education and related services” as well as the defendants' initial refusal to approve an in-district or out-of-district placement despite the inadequacies of the services available at GPS. (See id. ¶¶ 111-15). According to the plaintiffs, “[a]s a result of the defendants' deliberate indifference and severe, pervasive disregard for his safety and well-being, B.D. was deprived of a free and appropriate education and was caused to suffer great physical and emotional harm.” (Id. ¶ 116).

         This matter is presently before the court on “Defendants' Motion for Judgment on the Pleadings” (Docket No. 48) and “Defendants' Supplemental Motion for Judgment on the Pleadings” (Docket No. 61), [3] by which the defendants are seeking the dismissal of all claims asserted against them on the grounds (1) that the plaintiffs were required and failed to exhaust their administrative remedies under the IDEA before they could bring any of the claims asserted, (2) that the plaintiffs are not entitled to damages under the IDEA, (3) that the state tort claims against GPS, the School Committee and the Town are barred by the Massachusetts Tort Claims Act (“MTCA”), Mass. Gen. Laws ch. 258, § 2, and (4) that the plaintiffs have failed to state a claim against the individual defendants for intentional infliction of emotional distress.

         After consideration of the parties' written submissions, including their supplemental briefing, and the parties' oral arguments, and for all of the reasons described herein, this court finds that the plaintiffs' federal law claims must be dismissed for failure to exhaust administrative remedies under the IDEA. This court declines to exercise jurisdiction over the remaining state claims. See Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) (“the Supreme Court has instructed that ‘in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims.'”) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 619 n.7, 98 L.Ed.2d 720 (1988)). Therefore, the defendants' motions for judgment on the pleadings are ALLOWED, and the remaining state law claims will be remanded to state court.

         II. STATEMENT OF FACTS

         As the defendants have filed an answer to the complaint, their motion before the court is properly one for judgment on the pleadings, brought pursuant to Fed.R.Civ.P. 12(c). See Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006). “A motion under Fed.R.Civ.P. 12(c) for judgment on the pleadings is treated like a Rule 12(b)(6) motion to dismiss.” Diaz-Nieves v. United States, 858 F.3d 678, 689 (1st Cir. 2017) (citing Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007)). “Accordingly, ‘the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom.'” Id. (quoting Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). Dismissal on the pleadings is appropriate “if it appears that the nonmovant could prove no set of facts that would entitle him or her to relief.” Id. (citing Mass. Nurses Ass'n v. N. Adams Reg'l Hosp., 467 F.3d 27, 31 (1st Cir. 2006)) (additional citation omitted).

         Applying these principles, the relevant facts are as follows.

         B.D. and His IEP

         B.D. has Isodicentric Chromosome 15q Duplication Syndrome, a rare de novo genetic disorder. (See Am. Compl. ¶ 15). As described in the Amended Complaint:

As a consequence of this syndrome, B.D. has a number of substantial educational limitations, including global developmental delay, with a diagnosis of Pervasive Developmental Disability, Not Otherwise Specified (PDD, NOS), autistic spectrum disorder, seizure disorder, anxiety disorder, sleep disorder and gastrointestinal issues. B.D. also has been diagnosed with attention-deficit hyperactivity disorder (ADHD), a history of choking, low muscle tone and balance defects, together with a high threshold for pain, limited ability to report injury or discomfort, sensory process disorder, visual problems, decreased personal safety awareness, maladaptive behaviors such as bolting and aggression, cognitive impairment, and communication deficits.

(Id.). Furthermore, of significance to the issues before this court, “[c]hildren with Chromosome 15q Duplication Syndrome have an increased risk of sudden unexpected death (SUD)” caused by respiratory or cardiac arrest. (Id. ¶ 16). The plaintiffs contend that this increased risk “is typically correlated with seizure activity[, ]” as a result of which “the prevention of seizures in such children is of critical importance.” (Id.).

         In July 2009, when he was almost three years old, B.D. began attending Perley Elementary School (“Perley”) in Georgetown. (Id. ¶ 19). At Perley, B.D. received special education and related services provided by GPS under an IEP developed pursuant to the IDEA and the Massachusetts Special Education statute, Mass. Gen. Laws ch. 71B. (Id.). “Pursuant to his IEP, B.D. received individual instruction, occupational therapy, physical therapy, speech-language services both within and outside the classroom, home training by an aide, and . . . a 1:1 aide trained in CPR and Heimlich maneuvers because of a risk of choking and a risk of bolting.” (Id.). Also pursuant to his IEP, B.D. attended school both during the regular school year and over the summer as part of an “Extended School Year” (“ESY”) program. (Id.).

         B.D.'s parents were not satisfied with the services that B.D. was receiving at GPS. For example, but without limitation, as early as October 2009, three months after B.D. began attending Perley, B.D.'s parents expressed concerns to GPS, its administrators, educators and staff, based on Mrs. Doucette's personal observations, “that B.D. was not receiving the educational programming and services required under his IEP and these failures were placing his safety and well-being at risk.” (Id. ¶ 20). When B.D. was diagnosed with an anxiety disorder and a seizure disorder in December 2009, B.D.'s parents requested that his IEP be amended to include a Seizure Plan. (Id. ¶¶ 22-23). While the Seizure Plan was eventually added, according to B.D.'s parents, the appropriate personnel were never properly trained, and the Plan was not appropriately followed. (Id. ¶¶ 31-34).

         From January to early March 2010, B.D.'s parents had B.D. evaluated by a number of medical specialists who recommended that an educational program that utilized, to a substantial degree, applied behavior analysis (ABA) methodology, including structured sensory breaks and discrete trials, be added to B.D.'s IEP. (Id. ¶ 25). On March 29, 2010, B.D.'s parents complained at an IEP team meeting at which the Superintendent and the Principal were in attendance, that B.D.'s placement at GPS was inappropriate because B.D. was not making educational progress and his developmental delays were increasing. (Id. ¶ 26). They also argued that B.D. should be immediately placed in an in-district or out-of-district placement that incorporated ABA methodologies. (Id.). Members of B.D.'s IEP team “disagreed that B.D. was not making educational progress, that he needed structured sensory breaks, or that GPS was an inappropriate placement.” (Id.).

         After the March 2010 IEP team meeting, B.D.'s parents continued to complain verbally and in emails to GPS, its administrators, educators and staff, that B.D.'s safety and well-being were at risk because the school “was not implementing the kinds of interventions he needed to learn, that his aides were not appropriately trained, that he was not receiving sufficient sensory therapies, that he was not being monitored closely and was bolting from class, that he was becoming more aggressive toward other students, and that, after falling and hitting his head, his medical condition and disability were not taken into consideration and he was not provided proper care.” (Id. ¶ 27). As a result of these concerns, on May 10, 2010, B.D.'s parents removed B.D. from Perley, and B.D. remained out of school until September 2, 2010. (Id.).

         The 2010 BSEA Hearing

         On July 12, 2010, B.D.'s parents filed a Request for Hearing with the Massachusetts Bureau of Special Education Appeals (“BSEA”), seeking an out-of-district placement for B.D. for the 2010-2011 school year on the basis that GPS's proposed IEP was inappropriate. (Id. ¶ 28). B.D.'s parents also sought compensatory services for the time B.D. had been out of school. (Id.).

         After conducting hearings in late August 2010, the BSEA hearing officer found that B.D.'s proposed IEP “was not appropriate and not reasonably calculated to provide B.D. with a free and appropriate public education (“FAPE”) in the least restrictive environment[.]” (Id. ¶ 29). Nevertheless, the hearing officer found that GPS was an appropriate placement because “GPS could amend the IEP to make it appropriate through additions and modifications, ” and because GPS “had the capacity to develop an appropriate ABA-based substantially-separate classroom placement for B.D. at the start of the 2010-2011 school year.” (Id.). Plaintiffs allege that based on the BSEA decision and on explicit assurances from GPS “that it would develop an ABA-based, substantially separate Transition classroom that would be ready for the September 2010 start of school, and that an Individual Student Safety Plan and Seizure Plan would be integrated in his IEP, ” they allowed B.D. to return to Perley in September 2010. (Id. ¶ 30). As detailed below, the plaintiffs were of the opinion that the defendants never fulfilled their obligations under the IEP or provided the services that B.D. needed and to which he was entitled. However, they never filed any additional administrative claims.

         B.D.'s Service Dog

         B.D.'s seizure activity increased after he returned to school. (Id. ¶¶ 31-32). B.D.'s parents allege that despite assurances to the contrary, the defendants were not prepared to handle B.D.'s seizure activity appropriately. (Id. ¶ 32). As a result, B.D. was inappropriately sent home on occasion. (Id. ¶ 33). This caused B.D. to lose educational and developmental opportunities and to suffer a disruption in his schedules and routines. (Id. ¶¶ 32-33).

         In September 2011, B.D. began attending Kindergarten at Perley. (Id. ¶ 34). Shortly thereafter, in or about November 2011, B.D. privately received a specially trained and certified service dog that provided “autism assistance service, facilitated guide, search and rescue, and assistance with behavior disruption, anxiety, balance and seizure alerting, all of which were of benefit to B.D.” (Id. ¶ 35). B.D.'s parents allege that “[t]he service dog permitted B.D. to develop some independence and confidence and helped him bridge social barriers” and that “B.D.'s behavior in social situations improved when his service dog was present.” (Id. ¶ 36). Nevertheless, B.D. was not permitted to bring his service dog to school. (Id. ¶ 37). This denial constitutes the basis of the plaintiffs' Rehabilitation Act claim.

         In or about the spring of 2012, B.D. began exhibiting increased anxiety, staring, and inattention, and the Principal and B.D.'s mother discussed whether the use of B.D.'s service dog in school would help with B.D.'s anxiety. (Id. ¶ 39). However, the plaintiffs allege that the School Committee and Superintendent “blocked B.D.'s access to his service dog.” (Id.). Specifically, B.D.'s parents allege that “[i]n order for B.D. to have access to his service dog with GPS as the handler, [B.D.'s parents] were requested to sign and agree to a School Committee approved policy that was in violation of the Americans with Disabilities Act (ADA).” (Id.). B.D.'s parents allegedly declined to sign and agree to the policy. (Id.). B.D.'s parents also allege that the Superintendent “directed the performance of a Functional Behavior Assessment (FBA) to determine whether B.D. required the use of a service dog as an accommodation and to determine whether the IEP would be amended to include a service dog as an accommodation. The FBA data was to be collected in a trial period to take place during the academic school year, not during ESY and with B.D.'s mother present as the [dog's] handler.” (Id.). No further details regarding this FBA are provided.

         The 2012 ESY Program and B.D.'s Seizures

         The 2012 ESY program was held at Penn Brook Elementary School (“Penn Brook”) as opposed to its previous location at B.D.'s school, Perley. (Id. ¶ 43). As represented by the parties at oral argument, the location change was due to necessary repairs at Perley. B.D.'s parents were very upset by the location change, and were very concerned that Penn Brook would not be a safe facility for B.D. and that GPS would not be able to implement B.D.'s IEP appropriately there. (Id. ¶¶ 45-46). In their view, the defendants never lived up to their assurances that the ESY program would be ready and appropriate for B.D. (Id. ¶¶ 46-47).

         Plaintiffs allege that from the start of the 2012 ESY program, GPS failed to appropriately implement B.D.'s IEP. (Id. ΒΆΒΆ 46-48). For example, B.D.'s parents allege that ...


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