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Hootstein v. Amherst-Pelham Regional School Committee

United States District Court, D. Massachusetts

February 11, 2019




         Plaintiff Michael Hootstein is a custodial grandparent of a student at Amherst Regional High School (“ARHS”) and of a young child who will attend Amherst schools. Plaintiff is proceeding pro se and brought claims against Defendant Amherst-Pelham Regional School Committee (“Defendant”) related to lead-contaminated water at Defendant's schools, including ARHS. The complaint alleges two causes of action: first, a claim under 42 U.S.C. § 1983 that Defendant's response to lead-contaminated drinking water violated Plaintiff's, his grandson's, and others' Fourteenth Amendment due process rights (Count I); and second, the same conduct violated Article 97 of the Amendments to the Massachusetts Constitution (Count II). Plaintiff seeks various forms of injunctive and declaratory relief, but he does not seek monetary damages. Defendant moved to dismiss both counts, arguing the § 1983 claim is preempted by the Safe Drinking Water Act (“SDWA”), Defendant is not subject to the SDWA, and Art. 97 does not confer a private right of action. The court heard argument on the motion on January 17, 2019.[1] As explained below, Defendant's motion to dismiss will be granted in part and denied in part.

         I. BACKGROUND

         As the custodian of his two grandsons (one a student at ARHS who has a learning disability, the other a 5-year-old who will attend Amherst schools), Plaintiff is concerned about lead contamination in the water at Amherst schools.[2] (Compl. (Dkt. No. 1) at ¶¶ 1, 12.) “‘There is no safe level of exposure to lead and even exposure to relatively low levels can cause severe irreversible health effects.'” (Id. at ¶ 21 (quoting June 2016 report from Massachusetts Department of Public Health).) Legislation pending in Massachusetts when Plaintiff filed his complaint, if passed, would have required immediate shut-off of school drinking or cooking water containing more than 1 part per billion (“ppb”) of lead. (Id. at ¶ 1).

         Water at Amherst schools is lead-contaminated, and, Plaintiff alleges, five Amherst schools have 90th percentile lead levels between 35 ppb and 93 ppb, which is between 1.4 and 3.7 times more contaminated than the water in Flint, Michigan.[3] (Id. at ¶¶ 15-19.) A local newspaper reported “many” water samples that remained in pipes overnight “exceeded the EPA's 15 parts per billion action level for lead, ” but “almost all” of the samples “had negative tests for lead when water ran for 30 seconds.” (Id. at ¶ 28.) The article quoted the Amherst Health Director as saying, “‘[T]he water consumed at schools is likely to be just a minor portion of any lead intake.'” (Id.) Subsequent news coverage claimed that, of schools tested in western Massachusetts, “the Amherst-Pelham Regional School District had the highest number of taps with elevated levels of lead.” (Id. at ¶ 29.) The same Health Director was quoted as saying, “‘It's not that there's lead in the water, the water that enters the schools is safe. What happens is as it goes through these fixtures; [sic] it's picking up some lead.'” (Id.) Thus, the town itself acknowledged water became contaminated when passing through fixtures in schools.

         On October 11, 2016, the Acting Superintendent informed parents that school drinking water was safe “after using the flushing protocols.” (Id. at ¶ 23.) Plaintiff subsequently sent four written complaints to Defendant that the flushing protocols were ineffective, lead contamination in school drinking water had not been reduced to safe levels, and Amherst schools had been providing children contaminated drinking water and food prepared using contaminated water. (Id. at ¶¶ 23-26.) He contended that “increased rates of Amherst children with learning disabilities in our schools suggest the possibility that lead ingested by our children at school caused or contributed to our children's learning disabilities.” (Id. at ¶ 25.)

         Plaintiff acknowledges Defendant took corrective action to remediate lead in school drinking water but claims that after remediation, Defendant failed to test the water to ensure it was safe to drink. (Id. at ¶ 27.) He also alleges Defendant falsely claimed water was safe to drink when it was not, which exposed people to lead-contaminated water and possible lead poisoning. (Id. at ¶¶ 4, 30) He requested Defendant provide Amherst schools with bottled water (id. at ¶ 25), which Defendant has allegedly not done.

         Plaintiff alleges Defendant created a “foreseeable risk” that he, his grandson, and others would be “lead-poisoned at an Amherst public school from drinking lead-contaminated water deceptively certified as safe by defendant.” (Id. at ¶ 4.) Defendant's alleged misconduct began in September 2016 when it learned that Plaintiff and others “were likely drinking/ingesting lead-contaminated school drinking water/food” and chose not to warn them. (Id. at ¶ 5.) Defendant allegedly “provid[ed] toxic, lead-contaminated school drinking water unfit for human use and consumption to schoolchildren and adults (like the plaintiff)” knowing “lead-poisoning is likely to cause foreseeable irreparable physical, emotional and financial harm.” (Id. at ¶ 32; see also id. at ¶ 36 (Defendant “continues to expose all their [sic] students and their parents (the plaintiff in the current matter) to toxic lead-contaminated school drinking water”).) In addition, Defendant “has continued to deny irrefutable scientific evidence proving Amherst school drinking water dangerously exposes students (like plaintiff's grandson), parents (like the plaintiff), teachers and school staff to dire injury and imminent impairment known to be caused by even low levels of lead toxicity that bioaccumulates over time and is mostly stored in human bone.” (Id. at ¶ 6.)

         In Count I, Plaintiff claims Defendant deprived him of his rights to bodily integrity and to care and protect his grandson; Plaintiff also claims that, under the state-created danger doctrine, Defendant exposed him and others to possible lead poisoning. (Id. at ¶¶ 4, 7, 30, 33, 37, 39.) Plaintiff further claims he has been denied his procedural due process right to seek redress for Defendant's conduct. (Id. at ¶ 35.) In Count II, Plaintiff claims Defendant violated his right “to clean water” under Art. 97 of the Amendments to the Massachusetts Constitution. (Id. at ¶¶ 38-39.) He alleges he has suffered and will suffer emotional, economic, and physical injuries, but the complaint does not seek monetary damages. (Id. at ¶¶ 3-7, 32-33, 36-37, 39.) Rather, he seeks declaratory and injunctive relief, including an order requiring Defendant to provide bottled water to schools, install lead-free water supply lines in contaminated schools, conduct periodic lead testing, and perform an independent assessment of the extent of students' and others' lead exposure. (Id. at Prayer for Relief.) Plaintiff also requests the appointment of a monitor to ensure Defendant complies with lead standards in proposed legislation pending in Massachusetts in 2017. (Id.)


         Plaintiff listed himself as the only plaintiff in the caption on the complaint. But throughout the complaint, his various motion papers, and at oral argument, he stated he is bringing this action to protect the rights of himself, his grandson, all other students and parents, teachers, staff, and the general public. (Compl. (Dkt. No. 1) at ¶¶ 3-6, 32-34, 36, 39; MTD Opp. (Dkt. No. 14) at 1-3, 13-15; Motion for PI (Dkt. No. 24) at 1; PI Brief (Dkt. No. 25) at 1-2, 7-14.) Defendant did not raise the issue of standing in its motion to dismiss, but, in its opposition to Plaintiff's motion for a preliminary injunction, Defendant argued Plaintiff lacks standing to assert claims on his grandson's behalf.

         “By law, there are ‘only' two ways an individual may appear in federal court, either ‘pro se or through legal counsel.'” Clauson v. Town of W. Springfield, No. Civ. A. 99-30134-MAP, 2000 WL 251740, at *2 (D. Mass. Feb. 3, 2000) (quoting Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982)); see also 28 U.S.C. § 1654 (“the parties may plead and conduct their own cases personally or by counsel”). Accordingly, a pro se party cannot represent people other than him or herself. See Crippa v. Johnston, No. 91-1676, 1992 WL 245716, at *1 (1st Cir. Oct. 1, 1992) (per curiam) (“We have interpreted [28 U.S.C. § 1654] as barring a non-lawyer from representing anyone else but himself or herself.”). The First Circuit has explained the rule's purpose:

[A] party may be bound, or its rights waived, by its legal representative. When that representative is a licensed attorney there are grounds for belief that the representative's character, knowledge and training are equal to the responsibility. In addition, remedies and sanctions are available against the lawyer that are not available against [a lay representative], including misconduct sanctions and malpractice suits.

Herrera-Venegas, 681 F.2d at 42 (assessing rule prohibiting lay representation in context of non-lawyer prisoner seeking to represent follow inmates).

         The rule even bars a non-lawyer parent from representing his or her child. See Crippa, 1992 WL 245716, at *1 (“[A]lthough appellant and her children were represented by counsel below, appellant is appearing pro se on appeal. As a result, she may not represent her children in this appeal.”) (citing 28 U.S.C. § 1654); Ethan H. v. State of N.H., No. 92-1098, 1992 WL 167299, at *1 (1st Cir. July 21, 1992) (pro se parents may not represent their children before district court or on appeal); accord Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (“a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child”); Osei-Afriyie v. Med. Coll. of Penn., 937 F.2d 876, 882-83 (3d Cir. 1991) (parent “was not entitled, as a non-lawyer, to represent his children in place of an attorney in federal court”); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (“We hold that under Fed.R.Civ.P. 17(c) and 28 U.S.C.A. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.”). The Second Circuit explained the rationale for applying the rule to parents:

The choice to appear pro se is not a true choice for minors who under state law, see Fed. R. Civ. P. 17(b), cannot determine their own legal actions. There is thus no individual choice to proceed pro se for courts to respect, and the sole policy at stake concerns the exclusion of non-licensed persons to appear as attorneys on behalf of others.
It goes without saying that it is not in the interests of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected.

Cheung, 906 F.2d at 61.

         The court appreciates these concerns about a lay person adequately representing a minor's legal interests. But the potential unfairness of the rule is evident to the court because it prevents minors-who cannot bring their own pro se actions-from vindicating their rights in federal court unless they are represented by counsel. As a result, children are denied access to our legal system if their guardians are not attorneys, cannot afford counsel, or cannot find an attorney willing to take a case on contingency. See Sonja Kerr, Winkelman: Pro Se Parents of Children with Disabilities in the Courts (or Not?), 26 Alaska L. Rev. 271, 285 (2009) (“As a policy matter, without the right to represent their children in regard to substantive rights, parents may not have the ability or resources to protect those rights. As a result, the children's underlying claims may be permanently lost.”).

         The court recognizes Plaintiff's good intentions in wanting to protect his grandson and is sensitive to Plaintiff's interest in upholding his grandson's rights. Nevertheless, the court is bound by the rule prohibiting a lay guardian from representing a minor. As a result, Plaintiff-as a pro se litigant-can assert claims only on his own behalf. He cannot bring claims on behalf of his grandson or anyone else. This means the court cannot consider any claim that Plaintiff's grandson or anyone else suffered or will suffer harm because of Defendant's conduct. If Plaintiff would like to bring an action on behalf of his grandson or a class action on behalf of a class of people similarly situated to Plaintiff or his grandson, he must first arrange for counsel to represent him.

         Thus, the court will consider only Plaintiff's claims brought on his own behalf.

         III. LOCAL RULE 7.1

         Defendant's motion does not contain a certification pursuant to Local Rule 7.1(a)(2) that, before filing the motion, counsel conferred with Plaintiff and “attempted in good faith to resolve or narrow the issue[s].” On the morning of the hearing on the motion to dismiss, Plaintiff filed a summary of his legal arguments, in which he contended the motion to dismiss should be denied because Defendant did not confer with him before filing it. (Dkt. No. 33 at 1.)

         “Local Rule 7.1 plays an important role in the practices and procedures of this District.” Sun Capital Partners III, LP v. New England Teamsters & Trucking Indus. Pension Fund, --- F.R.D. ---, 2018 WL 6169366, at *2 (D. Mass. Nov. 26, 2018). It is “not an empty exercise”; instead, it “fosters discussion between parties about matters before they come before the court, and it preserves scarce judicial resources.” Martinez v. Hubbard, 172 F.Supp.3d 378, 385 (D. Mass. 2016). Monetary sanctions are available for failing to comply with the rule. See id. Dismissal is also available but is not always appropriate. See Sun Capital, 2018 WL 6169366, at *2 (citing Gerakaris v. Champagne, 913 F.Supp. 646, 651 (D. Mass. 1996) (“[W]hile a litigant's failure to observe the Local Rules invites sanctions, omitting to confer prior to filing a motion certain to be opposed does not warrant so severe a sanction as summary denial.”)).

         Here, it is unlikely a pre-motion conference would have changed the parties' positions or narrowed the issues. The parties fundamentally disagree about whether Plaintiff's § 1983 is preempted by federal statute. Under these circumstances, it would be inappropriate to impose the sanction of summary denial for failing to comply with Local Rule 7.1 (a)(2).

         Local Rule 7.1 serves an important function, and the court is concerned “that Local Rule 7.1 certification has been subject to considerable backsliding since its adoption.” Sun Capital, 2018 WL 6169366, at *2. Both parties must comply with the rule going forward.


         A complaint must contain “a short and plain statement of the claim, ” Fed.R.Civ.P. 8(a)(2), that “possess[es] enough heft to show that the pleader is entitled to relief, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal quotation marks omitted). To survive a Rule 12(b)(6) challenge, the allegations “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). In considering a motion to dismiss for failure to state a claim, the court accepts all well-pleaded facts as true and draws all reasonable inferences in the plaintiff's favor. See McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). “[A] pro se plaintiff is entitled to liberal construction of his allegations, no matter how inartfully pled.” Youngworth v. Gentile, No. 05-30108-MAP, 2007 WL 1827207, at *2 (D. Mass. June 22, 2007) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). And the court holds pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Haines, 404 U.S. at 520.

         V. ANALYSIS

         A. Section 1983 Claim

         1. Preemption by the Safe Drinking Water Act

         In Count I, Plaintiff brought a claim under 42 U.S.C. § 1983 that Defendant's response to lead-contaminated drinking water violated his Fourteenth Amendment due process rights. Defendant contends that, based on the First Circuit's holding in Mattoon v. City of Pittsfield, 908 F.2d 1 (1st Cir. 1992), the SDWA preempts the § 1983 claim. Plaintiff points out there is a circuit split on the issue and asks this court to follow Boler v. Earley, 865 F.3d 391 (6th Cir. 2017), cert. denied, 138 S.Ct. 1281 (2018), 138 S.Ct. 1285 (2018), 138 S.Ct. 1294 (2018), rather than First Circuit precedent. In Boler, which involves two consolidated cases about water contamination in Flint, Michigan, the Sixth Circuit rejected the First Circuit's analysis in Mattoon and held that the SDWA does not preempt § 1983 claims. Beyond the First and Sixth Circuits, no other court of appeals appears to have weighed in on the issue. While this court is bound by applicable First Circuit precedent, the Sixth Circuit's analysis of Mattoon convincingly distinguished it from the Flint cases, which are similar in some respects to the present case. Therefore, this court finds it appropriate to analyze Mattoon, Boler, and post-Mattoon Supreme Court precedent bearing on the issue of preemption.

         i. Preemption of ยง ...

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