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Doe1 v. Boston Public Schools

United States District Court, D. Massachusetts

March 1, 2019

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,
v.
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

         Plaintiffs 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.

         I. BACKGROUND

         The 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).

         Plaintiffs 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.

         Plaintiffs 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.

         During 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. ¶ 18.

         For 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. Id.

         During 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.

         In 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.

         On June 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, 40].

         II. STANDARD OF REVIEW

         On a 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 (2009)).

         When 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.

         III. DISCUSSION

         A. 42 U.S.C. § 1983 Claims (Count I, Against Defendant Gavins, and Count II, Against the Municipal Defendants)

         “[T]o 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 4-8].

         1. Violation of Right to Bodily Integrity

         The 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 theory.

         To 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)).

         At this 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.

         The 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). ...


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