United States District Court, D. Massachusetts
Gail Dein United States Magistrate Judge
OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR
JUDGMENT ON THE PLEADINGS
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
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),  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).
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),  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
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.
STATEMENT OF FACTS
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).
these principles, the relevant facts are as follows.
and His IEP
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.).
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”)
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.
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.).
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.).
2010 BSEA Hearing
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.
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.
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).
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.
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.
2012 ESY Program and B.D.'s Seizures
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. ¶¶
allege that from the start of the 2012 ESY program, GPS
failed to appropriately implement B.D.'s IEP.
(Id. ¶¶ 46-48). For example, B.D.'s
parents allege that ...