United States District Court, D. Massachusetts
JOHN DOE1 and JANE DOE1, on behalf of their minor child B.G., and JOHN DOE2 and JANE DOE2, on behalf of their minor child A.R., Plaintiffs,
BOSTON PUBLIC SCHOOLS, CITY OF BOSTON, TOMMY CHANG, MARTIN J. WALSH, and AYLA GAVINS, Defendants.
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
John Doe1 and Jane Doe1, on behalf of their minor child B.G.,
and John Doe2 and Jane Doe2, on behalf of their minor child
A.R., allege that Defendants Boston Public Schools, City of
Boston (together with Boston Public Schools, the
“Municipal Defendants”), Thomas Chang, Martin
Walsh, and Ayla Gavins failed to take sufficient steps to
protect B.G. and A.R. from sexual and physical assaults
committed by another student, A.J., that occurred at the
Mission Hill K-8 School. [See ECF No. 28
(hereinafter “Amended Complaint” or “Am.
Compl.”)]. Plaintiffs assert violations of 42 U.S.C.
§ 1983, the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12, § 11I, and Title IX, 20 U.S.C. § 1681
and claims for negligence and loss of consortium.
Id. at 6-9. Defendants have separately moved to
dismiss. [ECF Nos. 29, 31, 33, 35]. For the reasons set forth
below, the motions are GRANTED IN PART and
DENIED IN PART.
following facts are drawn from the Amended Complaint, the
well-pleaded allegations of which are taken as true for
purposes of evaluating Defendants' motion to dismiss.
See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90
(1st Cir. 2014).
Mr. Doe1 and Ms. Doe1 reside in Boston, Massachusetts with
their daughter, B.G. Am. Compl. ¶ 1. Plaintiffs Mr. Doe2
and Ms. Doe2 live in West Roxbury, Massachusetts with their
daughter, A.R. Id. ¶ 2. Defendant City of
Boston oversees the operation of Defendant Boston Public
Schools. Id. ¶ 4. Defendant Martin Walsh is the
Mayor of Boston, and during the time period relevant to the
Amended Complaint, Defendant Tommy Chang was the
Superintendent of the Boston Public Schools and Defendant
Ayla Gavins was the principal of the Mission Hill K-8 School.
Id. ¶¶ 5-7.
allege that B.G., A.R., and others were sexually assaulted by
A.J., another student, when they attended the Mission Hill
K-8 School. Some time before October 2014, A.J. sexually
assaulted two fellow students who are not plaintiffs in this
action, including by forcibly exposing their genitals and
kissing them in their genital areas. Id. ¶ 14.
When school staff became aware of these sexual assaults, they
took no actions to monitor A.J., expel A.J., or warn other
staff about A.J.'s actions. Id. ¶ 15.
or after October 2014, A.J. sexually assaulted B.G., who was
in his class at that time, by digitally penetrating her.
Id. ¶ 16, 21. When school staff became aware of
A.J.'s assault on B.G., a teacher filed a report with the
Massachusetts Department of Children & Families
(“DCF”) pursuant to mandated reporter obligations
under Mass. Gen. Laws ch. 119, § 51A (“51A
Report”). Id. ¶ 16. The Municipal
Defendants' practice and procedure was to discourage and
delay the filing of 51A Reports, and school staff were not
trained in the proper manner for filing such Reports.
Id. ¶ 19. Consistent with this practice, Gavins
discouraged staff from filing the mandatory 51A Reports to
DCF about sexual assaults committed by A.J. and other
students, and the teacher who filed the 51A Report concerning
B.G.'s assault was fired in retaliation. Id.
several months following the sexual assault by A.J., B.G.
remained in the same classroom as him and lived in fear of
being assaulted again. Id. ¶ 21. As a result of
her assault, B.G. suffered physical injuries and severe
emotional distress. Id. ¶ 29. In addition to
B.G., during the 2014-2015 school year, A.J. sexually
assaulted four other female students and one other male
student at the Mission Hill K-8 School. Id. ¶
20. These assaults were reported to school staff.
the 2015-2016 school year, A.J. groped A.R. in her breast and
genital areas; he also tried to kiss A.R. and threatened her
with physical violence if she refused. Id. ¶
24. School staff witnessed these assaults and reported them
to Gavins. Id. A.J. also made A.R. expose her
genitals to him by threatening her with physical violence.
Id. This assault was also reported to school staff,
including Gavins. Id.
September 2016, after A.R. was assigned to sit next to A.J.
in class, school staff again witnessed A.J. repeatedly
assaulting A.R. and reported the incidents to Gavins.
Id. ¶ 25. These assaults included A.J. forcibly
kissing A.R. and touching her chest. Id. Around the
same time, a teacher witnessed A.J. sexually assault another
student by touching her genitals and reported that incident
to Gavins. Id. In October 2016, while A.R. played on
the playground at the Mission Hill K-8 School, A.J. grabbed
her genitals. Id. ¶ 26. During the 2015-2016
school year, A.R.'s parents asked school staff for a
safety plan for A.R., but Gavins instructed staff not to
provide a safety plan or otherwise respond to the requests.
Id. ¶ 23. As a result of the assaults by A.J.,
A.R. suffered physical injuries and severe emotional
distress. Id. ¶ 29.
15, 2017, Plaintiffs filed a complaint in the Massachusetts
Superior Court for Suffolk County. [ECF No. 1-1]. On
September 1, 2017, Defendants removed the action to this
Court. [ECF No. 1]. Defendants moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) on
September 28, 2017. [ECF Nos. 9, 11, 13, 15, 17]. On July 6,
2018, the Court granted Defendants' motions to dismiss
without prejudice and allowed Plaintiffs leave to amend. [ECF
No. 25]. On August 13, 2018, Plaintiffs filed the Amended
Complaint, and on August 24, 2018, Defendants moved to
dismiss the Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). [ECF Nos. 28, 29, 31, 33, 35].
Plaintiffs filed oppositions to the Municipal Defendants'
and Gavins' motions on September 21, 2018. [ECF Nos. 39,
STANDARD OF REVIEW
motion to dismiss for failure to state a claim, the Court
accepts as true all well-pleaded facts in the complaint and
draws all reasonable inferences in the light most favorable
to the plaintiff. U.S. ex rel. Hutcheson v. Blackstone
Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011). While
detailed factual allegations are not required, the complaint
must set forth “more than labels and conclusions,
” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007), and it must contain “factual allegations,
either direct or inferential, respecting each material
element necessary to sustain recovery under some actionable
legal theory.” Gagliardi v. Sullivan, 513 F.3d
301, 305 (1st Cir. 2008) (internal quotations and citations
omitted). The facts alleged, taken together, must
“state a claim to relief that is plausible on its
face.” A.G. ex rel. Maddox v. Elsevier, Inc.,
732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly,
550 U.S. at 570). “A claim is facially plausible if
supported by ‘factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Eldredge v. Town
of Falmouth, 662 F.3d 100, 104 (1st Cir. 2011)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
assessing the sufficiency of a complaint, the Court first
“separate[s] the complaint's factual allegations
(which must be accepted as true) from its conclusory legal
allegations (which need not be credited).”
Maddox, 732 F.3d at 80 (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Next,
the Court “determine[s] whether the remaining factual
content allows a ‘reasonable inference that the
defendant is liable for the misconduct alleged.'”
Id. (quoting Morales-Cruz, 676 F.3d at
224). “[T]he court may not disregard properly pled
factual allegations, ‘even if it strikes a savvy judge
that actual proof of those facts is improbable.'”
Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d
1, 12 (1st Cir. 2011) (quoting Twombly, 550 U.S. at
556). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
” however, a claim may be dismissed. Iqbal,
556 U.S. at 679.
42 U.S.C. § 1983 Claims (Count I, Against Defendant
Gavins, and Count II, Against the Municipal
state a claim under § 1983, a plaintiff must allege (1)
the violation of a right protected by the Constitution or
laws of the United States and (2) that the perpetrator of the
violation was acting under color of law.”
Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 621
(1st Cir. 2000). Defendants do not contest that they acted
under color of law. Rather, Defendants argue that Plaintiffs
have failed to allege the violation of a constitutional
right, that Gavins is protected by qualified immunity, and
that Plaintiffs have failed to state a Monell claim
against the Municipal Defendants. [ECF No. 30 at 4-8; ECF No.
32 at 4-7]. Plaintiffs respond that Defendants can be held
liable under a state-created danger theory for the
deprivations of B.G.'s and A.R.'s right to be free
from intrusions into their bodily integrity and their right
to receive a public education, that Gavins is not entitled to
qualified immunity because those constitutional rights are
clearly established, and that the Municipal Defendants can be
held liable for policies or customs that caused the
constitutional violations. [ECF No. 39 at 4-8; ECF No. 40 at
Violation of Right to Bodily Integrity
Amended Complaint alleges that Gavins and the Municipal
Defendants violated the Constitution by depriving B.G. and
A.R. of their liberty interest in bodily integrity. Am.
Compl. ¶¶ 35, 43. “In order to establish a
substantive due process claim, the plaintiff must first show
a deprivation of a protected interest in life, liberty, or
property.” Rivera v. Rhode Island, 402 F.3d
27, 33-34 (1st Cir. 2005). Here, Plaintiffs claim that A.J.,
and not Defendants, was B.G.'s and A.R.'s abuser. As
a general matter, a state's “failure to protect an
individual against private violence simply does not
constitute a violation of the Due Process Clause.”
DeShaney v. Winnebago Cty. Dep't of Soc. Servs.,
489 U.S. 189, 197 (1989). “That is because the purpose
of the Due Process Clause is to protect the people from the
state, not to ensure that the state protects them from each
other.” Rivera, 402 F.3d at 34. However, the
Supreme Court in DeShaney “suggested, but
never expressly recognized, the possibility that when the
state creates the danger to an individual, an affirmative
duty to protect might arise.” Id. at 34-35
(citing DeShaney, 489 U.S. at 201). While at least
eight circuits “have recognized the existence of the
state-created danger theory, ” and the First Circuit
“has discussed the possible existence” of the
theory, the First Circuit has “never found it
applicable to any specific set of facts.” Irish v.
Maine, 849 F.3d 521, 526 (1st Cir. 2017).
Plaintiffs' claims rely on this state-created danger
prevail on a claim based on the state-created danger theory,
Plaintiffs must prove “not only that a government
official's action proximately caused his injuries, but
also that these actions shock the court's
conscience.” Doe v. Town of Wayland, 179
F.Supp.3d 155, 165 (D. Mass. 2016) (citing
Lockhart-Bembery v. Sauro, 498 F.3d 69, 77 (1st Cir.
2007)). “The burden to show state action that shocks
the conscience is extremely high, requiring stunning evidence
of arbitrariness and caprice that extends beyond mere
violations of state law, even resulting from bad faith to
something more egregious and more extreme.”
Id. (quoting Melendez-Garcia v. Sanchez,
629 F.3d 25, 37 (1st Cir. 2010)). “[W]hether behavior
is conscience shocking varies with regard to the
circumstances of the case, ” and thus, “[i]n
situations where actors have an opportunity to reflect and
make reasoned and rational decisions, deliberately
indifferent behavior may suffice to ‘shock the
conscience.'” Rivera, 402 F.3d at 36
(quoting County of Sacramento v. Lewis, 523 U.S.
833, 850-52 (1998)).
stage, the Court must take as true Plaintiffs'
allegations that: before A.J. assaulted B.G., school staff
knew that A.J. had previously sexually assaulted two other
students at the school by forcibly exposing their genitals
and kissing them in their genital areas but took no actions
to ensure that A.J. would not sexually assault other
students; on or after October 2014, A.J. sexually assaulted
B.G. by digitally penetrating her; during the 2014-2015
school year, in addition to B.G., A.J. sexually assaulted
four other female students and one male student, and these
assaults were reported to school staff, including Gavins;
during the 2015-2016 school year, school staff observed A.J.
grope A.R. in her chest and genital areas and threaten A.R.
with physical violence if she refused to kiss him; during the
2015-2016 school year, A.J. forced A.R. to expose her
genitals to him by threatening her with physical violence if
she refused, and this was reported to school staff; in
September 2016, A.R. was assigned to sit next to A.J. and
school staff witnessed A.J. forcibly kiss A.R. and touch her
chest; around September 2016, a school teacher witnessed A.J.
sexually assault another student by touching her genitals and
reported this to Gavins; and in October 2016, A.J. sexually
assaulted A.R. by grabbing her genitals over her clothes
while on the playground. Am. Compl. ¶¶ 14-17,
20-22, 24-26. Further, the Court must credit Plaintiffs'
allegations that: at some point, a 51A Report of child abuse
was filed by a school teacher concerning A.J.'s sexual
assault on B.G., but Gavins discouraged staff from filing 51A
Reports about A.J.'s other assaults or the sexual
assaults committed by other students; one school teacher was
fired in retaliation for filing a 51A Report about A.J.'s
sexual assaults; staff were not properly trained on filing
51A Reports, and the school's practice was to discourage
and delay the filing of 51A Reports concerning sexual
assaults perpetuated by A.J. and other students; and in
response to A.R.'s parents' request for a safety plan
for A.R., Gavins instructed school staff not to provide one
or otherwise respond to the request. Id.
¶¶ 16, 18-19, 23.
Court finds that Plaintiffs have narrowly alleged sufficient
facts to survive the motions to dismiss their state-created
danger claim. First, although it is a very close question,
the Court can infer that by suppressing and delaying the
filing of 51A Reports about A.J.'s sexual assaults and
firing a teacher in retaliation for filing such a Report,
Defendants' actions left B.G. and A.R. more vulnerable to
A.J.'s assaults. Under Massachusetts law, specified
persons, including school staff, must report allegations of
child abuse to DCF if he or she “has reasonable cause
to believe that a child is suffering physical or emotional
injury resulting from . . . abuse inflicted upon him [or her]
which causes harm or substantial risk of harm to the
child's health or welfare, including sexual abuse.”
Mass. Gen. Laws ch. 119, § 51A(a). Section 51A
“imposes an affirmative obligation to report when there
is ‘reasonable cause to believe' abuse or neglect
has taken place and sets a low threshold for what constitutes
reasonable cause.” Doe v. Bradshaw, 203
F.Supp.3d 168, 183 (D. Mass. 2016) (citation omitted).