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Berry v. RSU 13 School Board

United States District Court, D. Maine

February 24, 2016

BETHANY A. BERRY, o/b/o Minor Child HNBV, Plaintiff,
v.
RSU 13 SCHOOL BOARD, et al., Defendants.

ORDER ON MOTION TO DISMISS

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

As civil rights statutes are not intended to be a font of tort law, the Court grants a motion to dismiss a complaint that resonates in tort, not constitutional law, and dismisses without prejudice several state law claims to allow the plaintiff, if he wishes, to bring those claims in state court.

I. PROCEDURAL BACKGROUND

On April 21, 2015, certain Plaintiffs filed a complaint against the RSU 13 School Board and other named Defendants associated with the School Board or Oceanside High School within RSU 13. Compl. (ECF No. 1). On May 1, 2015, the Court granted a motion to amend the complaint to allow the Plaintiffs to file a new proposed complaint in the name of an adult plaintiff and the initials of the minor for whom the lawsuit was being brought. Order (ECF No. 11). On May 11, 2015, the Plaintiff Bethany A. Berry filed an amended complaint in accordance with the Court’s May 1, 2015 Order.[1] Am. Compl. (ECF No. 14).

On June 26, 2015, the Defendants moved to dismiss the Amended Complaint. Defs.’ Mot. to Dismiss (ECF No. 16) (Defs.’ Mot.). On July 17, 2015, the Plaintiff filed a response in opposition to the motion to dismiss. Pls.’ Reply with Incorporated Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (ECF No. 17) (Pl.’s Opp’n). On July 28, 2015, the Defendants filed a reply. Defs.’ Reply to Pls.’ Reply (Defs.’ Reply).

II. THE AMENDED COMPLAINT

A. The Parties

The Plaintiff alleges that HNBV is a resident of Rockland, county of Knox, state of Maine, and that HNBV, a minor, is a student at Oceanside High School East (Oceanside). Am. Compl. ¶ 9. The Plaintiff alleges that Defendant RSU 13 School Board is the school board responsible for adopting policies for Oceanside in Rockland, Maine. Id. ¶ 10. The Plaintiff says that Defendant Steve Roberts was the Chair of the RSU 13 School Board and a member of the RSU 13 Policy Committee, that Defendant Kenneth Pride is a teacher and ski club co-coordinator at Oceanside, that Defendant Paul Desaulniers is a science teacher and ski club co-coordinator at Oceanside, that Defendant Lewis Collins was the RSU 13 school superintendent, that Defendant Sherman Hoyt is a member of the RSU School Board and the Chair of the RSU 13 Policy Committee, that Defendant Ilmi Carter is the school nurse at Oceanside, and that Defendant Elaine Ernest is an Ed Tech at Oceanside. Id. ¶¶ 11-17.

B. The Alleged Facts[2]

The Plaintiff alleges that on January 20, 2014, the RSU 13 Ski Club at Oceanside transported HNBV to Sugarloaf Mountain in Franklin County, Maine with the RSU 13 ski club from Oceanside East High School in Rockland, Maine. Id. ¶ 18. The Plaintiff says that his mother, Bethany A. Berry, wrote Oceanside to keep HNBV off the dangerous ski trials, but HNBV sustained multiple injuries and a concussion, causing him to defecate, lose consciousness, and to chip three of his teeth and dislocate a fourth tooth. Id. ¶ 19. HNBV asserts that he exercised his Fourteenth Amendment procedural due process right to refuse medical treatment and declined to go in an ambulance. Id. ¶ 20. When Mr. Pride arrived at the ski clinic, however, he touched HNBV with unclean hands and informed him that “You’re going in the ambulance because I’m not getting sued.” Id. At the hospital, Mr. Desaulniers ordered HNBV to “Stop being such a big baby” and he humiliated HNBV by causing him to urinate in a prone position. Id. ¶ 21.

HNBV sustained a loss of consciousness and fecal matter, a contusion to the chest and back, dental trauma, tooth subluxation, a hematoma to the scalp and neck, a puncture wound to his tongue, and profuse bleeding from his mouth. Id. ¶ 22. HNBV was left in his own excrement for hours and underwent a number of x-rays and CT scans. Id. Also, he dislocated his tooth, pushing it forward. Id. ¶ 23. This tooth may never return to its original position. Id. The dislocated tooth pushed the surrounding teeth causing pain and weakness to those teeth. Id. HNBV also lost irreplaceable enamel on his teeth and he had never had a cavity on any of his permanent teeth. Id. In addition, HNBV was told that he had chipped teeth embedded in his tongue necessitating surgery of his tongue. Id. ¶ 24. Furthermore, HNBV sustained a range of injuries, from extreme sensitivity in his teeth and weight loss, to sensitivity to light, sound, and temperature due to the concussion. Id. ¶¶ 25-28.

The Plaintiff alleges that his treating physician had authorized a handicapped placard for HNBV and that when he arrived at school, the handicapped entrance was locked and Ms. Ernst told HNBV that he could not use the handicap entrance and would have to use the front door with bustling students pouring in. Id. ¶ 29.

The Plaintiff also says that during March and April 2014, he was prohibitively hazed and bullied for the injuries he had sustained on January 20, 2014. Id. ¶ 32. He claims that both Oceanside faculty and students verbally and physically hazed him for wearing sunglasses. Id. The Plaintiff alleges a pattern of violence that persists. Id.

C. The Theories of Action

The Plaintiff asserts the following theories of action:

(1) Count One-a 42 U.S.C. § 1983 claim for excessive force under the Fourth Amendment;

(2) Counts Two, Three and Four-42 U.S.C. § 1983 claims for the Defendants’ failure to establish or maintain adequate written policies, procedures, and guidelines for Oceanside ski trips, governing the use of safety equipment, the constitutional right of a student to refuse treatment, the need to have an emergency contact when a student is injured, the failure to establish policies of proper decorum when a student is injured, the failure to have an use of force policy, the failure to have a written policy on responding to an injured student, the failure to establish a buddy system for the field trip, the failure to have a written policy on how to respond to a student’s dental injury, the failure to have a written policy on the use of chest restraints, the failure to have a written policy on hypothermia for students attending a high school ski trip, the failure to have a written policy on basic first aid, the failure to have a written policy on proper handwashing procedures, the failure to have a written policy on how to ski within control, the failure to have a written policy on inspection of student ski equipment, the failure to have a written policy for maintaining RSU 13 employee electronic mail to respond to Maine public document requests, and the failure to have a written policy about the proper investigation of allegations of student hazing;

(3) Count Five-42 U.S.C. § 1983 claim for violation of a custom or policy of RSU 13 policy JJIF, Management of Concussion and Other Head Injuries;

(4) Count Six-42 U.S.C. § 1983 claim for violation of RSU 13 policy CHD for failure to inform the RSU 13 School Board of the need for policies set forth in Counts Two through Four;

(5) Count Seven-42 U.S.C. § 1985(3) claim because two or more Defendants interfered with HNBV’s civil rights as described in Counts Two through Four;

(6) Count Eight-42 U.S.C. § 1983 claim for violation of procedural and substantive due process in the United States and Maine Constitutions for hazing and bullying HNBV and a 20-A M.R.S. §§ 6553-54 claim for hazing and bullying HNBV;

(7) Count Nine-5 M.R.S. § 4593, Maine Human Rights Act claim for wrongful denial of access to a handicapped entrance;

(8) Count Ten-14 M.R.S. § 6051, Maine equitable relief for violations of civil, constitutional and human rights, if there are no adequate remedies at law;

(9) Count Eleven-14 M.R.S. § 6051, Maine equitable estoppel for violations of civil, constitutional and human rights, if there are no adequate remedies at law;

(10) Count Twelve-42 U.S.C. § 1983 claim for refusal of Defendants to accept service of the Complaint without cause; and

(11) Count Thirteen-42 U.S.C. § 1983 claim for failure to establish a written RSU 13 policy on acceptance of service.

III. THE PARTIES’ POSITIONS

A. The Defendants’ Motion to Dismiss

In general, the Defendants say that this lawsuit is about a skiing accident that occurred during a school-sponsored ski trip and should be resolved as a tort claim, not a federal civil rights action. Defs.’ Mot. at 1.

1. The General Claims against the Entity Defendants

The Defendants first discuss the claims against the so-called “Entity Defendants, ” namely the School Board and the Policy Committee. Id. at 6-7. They note that the doctrine of respondeat superior has no application in § 1983 cases and that a public entity is responsible under § 1983 only if the challenged actions were “representative of an official policy or custom.” Id. at 6. Citing Bardanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989), the Defendants say that to prove a case against a public entity under § 1983, a plaintiff must show that (1) a municipal custom or policy is so widespread and established that the policymakers have knowledge of the practice, and (2) the custom or policy was the “cause of and the moving force behind the deprivation of constitutional rights.” Defs.’ Mot. at 6. As regards a failure to train allegation under § 1983, a plaintiff must show that there are “underlying identifiable constitutional violations attributable to official municipal policy” and that the public entity’s failure to train is related to an “action pursuant to official municipal policy of some nature that caused a constitutional tort.” Id. at 6-7 (quoting Kennedy v. Town of Billerica, 617 F.3d 520, 531-32 (1st Cir. 2010) (quoting Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 691 (1978)) (emphasis in original).

With this background, the Entity Defendants argue that the “failure to allege that the Entity Defendants followed a policy or custom is fatal to a claim for damages against that entity or against an individual in an official capacity.” Id. at 7. The Entity Defendants maintain that the Plaintiff has failed to point to “any identifiable custom, policy, or practice which is violative of their constitutional rights” and the failure to “adopt new policies and follow existing policies” is not a valid basis for claiming a constitutional violation. Id.

2. The Claims against the Entity Defendants Based on Failure to Direct Claims

To maintain a claim against the Entity Defendants for a failure to direct, the Entity Defendants say that a plaintiff must show “an actual policy of inadequate training, where ‘the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [school] can reasonably be said to have been deliberately indifferent to the need.’” Id. at 7 (quoting Ms. K. v. City of S. Portland, 407 F.Supp.2d 290, 297 (D. Me. 2006) (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)). A plaintiff must also demonstrate “that a [school district] deliberately chose an inadequate training program.” Id. at 7-8 (quoting Ms. K., 407 F.Supp.2d at 297). The Entity Defendants argue that the Plaintiff has not “identified any ‘actual policy of inadequate training’ or any ‘deliberate indifference, ’ nor could they.” Id. at 8. The Entity Defendants say that the Plaintiff has only argued that “other policies should have been adopted.” Id. (emphasis in original). The Entity Defendants claim that the Plaintiff’s failure to plead “any previous harm arising from an actual policy, or any evidence of ‘deliberate indifference’ on the part of the Entity Defendants, is fatal to their claim.” Id.

3. The Claims against the Individual Defendants in their Official Capacities

The Defendants turn to the claims against the so-called Individual Defendants in their official capacities. Id. at 8. Similarly, the Defendants maintain that the Plaintiff’s “failure to assert that the Individual Defendants, in their official capacities, had an actual policy or custom of engaging in the allegedly unconstitutional behavior is fatal to their claims.” Id. The Individual Defendants stress that the “failure of the Individual Defendants to notify the Board of a subjective need for a policy does not make a valid [§] 1983 claim.” Id.

4. The Claims against the Individual Defendants as Individuals

The Defendants next address the claims against the so-called Individual Defendants. Id. at 8-9. The Defendants concede that the Plaintiff listed Steve Roberts, Sherman Hoyt, Lewis Collins, and Ilmi Carter in the caption of the Amended Complaint. Id. at 8-9. However, they assert that “none of the Plaintiffs’ claims appear to address these defendants directly.” Id. They argue that “[t]his is insufficient even under the minimal standards of notice pleading.” Id. at 9.

5. The Substantive Due Process Claim

To maintain a substantive due process claim, the Defendants say, a plaintiff must allege conduct that is “so extreme as to ‘shock the conscience.’” Id. (quoting Cummings v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)). Here, the Plaintiff alleged that he was verbally and physically hazed for wearing sun glasses, and that Mr. Pride attempted to assault him with projectiles, including tennis balls, and recruited high school students to offensively abuse HNBV. Id. at 10. The Defendants assert that, even if taken as true, these actions “do not rise to the level of ‘conscious shocking.’” Id. The Defendants note that the Plaintiff does not allege that Mr. Pride’s or any other of the Defendants’ actions resulted in injuries to HNBV, but “rather were done for the purpose of ‘assessing his injuries.’” Id. The Defendants claim that these allegations fail to state a substantive due process claim.

6. The Procedural Due Process Claim

To state a claim for a violation of procedural due process, the Defendants say that a plaintiff must show “that (1) [he] was deprived of a protected property interest, and (2) the procedures attendant to that deprivation were constitutionally inadequate.” Id. at 11 (quoting Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 88 (1st Cir. 2014)). The Defendants argue that the Plaintiff failed to identify any property interest that was violated or that the school policies were constitutionally inadequate to protect such an interest. Id.

7. The Fourth Amendment Claim to be Free from Excessive Force

Citing Graham v. Connor, 490 U.S. 386, 396 (1989), the Defendants state that the standard for a Fourth Amendment violation is “objective reasonableness” and that this analysis requires a determination as to whether the force used to effect a particular seizure is reasonable and a balancing of the nature and quality of the intrusion against the countervailing governmental interests at stake. Id. at 12. Focusing the Plaintiff’s allegation that after HNBV refused medical treatment, Mr. Pride touched him with unclean hands and told him that he was going to the hospital because Mr. Pride was not getting sued, the Defendants say that these allegations would not allow a reasonable person to conclude that any excessive force was used in transporting an injured student to a hospital. Id.

8. The Fourth Amendment Claim to be Free from Unreasonable Seizures

The Defendants note that the Plaintiff alleged that they violated his Fourth Amendment right to be free from unreasonable seizures. Id. at 13. The Defendants say that the Plaintiff’s Fourth Amendment claim is based on his claim that the Entity Defendants did not have a policy in place to prevent Oceanside staff from transporting injured students to a hospital. Id. The Entity Defendants claim that this theory fails because there is no allegation that HNBV was restrained and there is no allegation that the Entity Defendants were aware that there was a custom or practice of doing so. Id. The other possible allegation is against Mr. Pride, but here the Defendants asserts that there is no basis to conclude that HNBV could have thought he was not free to leave and that he was required to go to the hospital following his ski accident. Id. at 13-14. The Defendants maintain that the other alleged violations in the Amended Complaint, such as being deprived of his free exercise and enjoyment of television, videogames and movies, are not rights cognizable under the Fourth Amendment. Id. at 14.

9. The First Amendment Claim of Access to the Courts

The Plaintiff complained that he was denied his First Amendment right of access to the courts because Mr. Pride and Mr. Desaulniers refused service of process. Am. Compl. ¶ 34-A. More specifically, the Plaintiff says that their refusal to accept service of process “created unnecessary service expenses of hiring the Knox County Sheriff’s department to serve the Defendants.” Id. The Defendants point out that Federal Rule of Civil Procedure 4(d)(2) provides a mechanism and potential sanction for the refusal to waive service of process. Defs.’ Mot. at 14-15. Also, Defendants note that they waived service of summons on April 28, 2015, a week after the Plaintiff filed the original Complaint. Id. at 15. The Defendants say that based on these allegations and facts, there is no viable First Amendment claim. Id.

10. Unrecognized Constitutional Allegations

The Defendants say that the Plaintiff’s allegations of being deprived of the right to enjoy television and videogames, of temporarily losing his ability to speak due to tongue injuries, and of being subjected to dietary restrictions do not amount to constitutional violations. Id.

11. The 42 U.S.C. § 1985(3) Claim

In the Amended Complaint, the Plaintiff asserts “a claim under Title 42 U.S.C. § 1985(3) because two or more of the Defendants interfered with the exercise and enjoyment of both Plaintiffs as described in other counts of this complaint.” Am. Compl. ¶ 43. The Defendants quote the First Circuit as setting a standard for a § 1985(3) claim: “To state a claim under § 1985(3), a plaintiff must, among other requirements, allege the existence of a conspiracy intended to deprive an individual or class of persons of protected rights based on some . . . invidiously discriminatory animus.” Id. (quoting Burns v. State Police Ass’n of Mass., 230 F.3d 8, 12 (1st Cir. 2000)). The Defendants assert that the Plaintiff’s due process claims must fail and that the Plaintiff has not asserted that he is a member of a protected class. Id. In addition, citing Ms. K v. City of S. Portland, 407 F.Supp.2d 290, 301 (D. Me. 2006), the Defendants say that for § 1985(3) purposes, a school district and its employees are considered one entity and a single entity cannot conspire with itself. Id. at 15-16.

12. The State Claims and Supplemental Jurisdiction

In the Amended Complaint, the Plaintiff sets forth several state law theories of action: (1) Count 8-a bullying and hazing claim under 20-A M.R.S. §§ 6553-54, (2) Count 9-a Maine Human Rights Act claim under 5 M.R.S. § 4593, and (3) Maine constitutional claims. See Am. Compl. The Defendants concede that the Court now has pendent jurisdiction over the state law claims, but if the Court dismisses the federal claims, they urge the Court to dismiss the state law claims to allow them to proceed in state court. Defs.’ Mot. at 16-17.

13. The Maine Civil Rights Act and Maine Human Rights Act Claims

On the assumption that the Court dismisses the federal civil rights claims, the Defendants urge the Court to do the so same for the state civil rights claims since the federal and state statutes are interpreted in the same manner. Id. at 16. Next, regarding the handicapped entrance issue, the Defendants say that the Plaintiff failed to allege facts that could trigger application of 5 M.R.S. § 4593. Id. at 17. They also point out that the Plaintiff’s claim is time barred under 5 M.R.S. § 4611 and that he failed to exhaust administrative remedies under 5 M.R.S.A § 4622(1). Id. at 17-18.

14. The Maine Bullying and Hazing Statutes

Turning to the Maine bullying and hazing statutes, the Defendants argue that, although each statute requires a school district to have policies and training programs that address bullying and hazing, neither statute provides a private cause of action for a student who is exposed to bullying and/or hazing. Id. at 18-19.

15. The State of Maine Constitutional Violations

The Defendants maintain that because the United States and Maine constitutions provide for similar rights, if the Court has dismissed the federal constitutional claims, it should do the same for the state claims. Id. at 19.

16. Qualified Immunity

The Defendants finally argue that the federal civil rights claims must be dismissed because the Defendants enjoy qualified immunity from suit unless the statutory or constitutional violations were clearly established at the time of the challenged conduct. Id. at 19-20. Here, the Defendants maintain, there was no clearly established constitutional right for the claims the Plaintiff is making. Id.

B. The Plaintiff’s Response

The Plaintiff filed a forty-six page opposition to the motion to dismiss. Pl.’s Opp’n at 1-46. Describing the Defendants’ memorandum as “sesquipedalian, ” the Plaintiff says that ...


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