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Varney v. Richards

Superior Court of Maine, Penobscot

July 21, 2016

TERRY AND KELLY VARNEY, individually and as parents and next friend of R.V., Plaintiffs,
v.
DENISE RICHARDS, individually and in her official capacity as Educational Technician employed by Regional School Unit #67, DENISE HAMLIN, individually as the former Superintendent of Regional School Unit #67, and KEITH LASER, in his official capacity as successor to DENISE HAMLIN as the Superintendent of Regional School Unit # 67, Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT HAMLIN'S MOTION FOR JUDGMENT ON THE PLEADINGS

          William R. Anderson Justice, Maine Superior Court

         Before the Court is Defendants Denise Richards, Denise Hamlin, and Keith Laser's motion for summary judgment and Defendant Denise Hamlin's motion for judgment on the pleadings in a case alleging violations of the Maine Civil Rights Act, 5 M.R.S. § 4681 et. seq., intentional infliction of emotional distress, negligent infliction of emotional distress, and assault and battery, filed on October 21, 2015. This case was originally filed in the District of Maine, where two counts were dismissed and the remaining counts were remanded to this Court. After consideration and for the reasons stated below, Defendants' motion for summary judgment is GRANTED as to counts II, IV, V, VI, and VIII. Defendant Hamlin's motion for judgment on the pleadings is GRANTED as to counts VII and IX, and MOOT as to counts II and IV.

         BACKGROUND

         The following facts, viewed in the light most favorable to Plaintiffs as the non-moving party, are undisputed and established in the summary judgment record.[1] In evaluating counts VII and IX of the motion for judgment on the pleadings, only the facts alleged in Plaintiffs' complaint will be considered. However, the facts described in this section provide a basis for the events that form the basis of this opinion.

         Plaintiffs Terry and Kelly Varney are the parents of R.V. (Compl, ¶ 1.) Denise Richards is an Education Technician that rides RSU # 67 school bus # 9. (Defs.' S.M.F, ¶¶ 4-5.) On October 29, 2012, R.V., a seven-year-old elementary school student weighing 45 pounds, was riding with another student in the front seat of school bus # 9. (Id. ¶¶ 5-6; Pis, ' Opp. S.M.F. ¶¶ 6, 20.) Ms. Richards was riding in a seat two rows behind R.V., and there was an empty seat across the aisle from her. (Defs, ' S.M.F. ¶ 7.)

         While the bus was moving, there was an altercation in R.V.'s seat between her and her seatmate. (Id. ¶¶ 8-10.) Plaintiffs allege that the cause of this altercation was bullying by R.V.'s two seatmates, resulting in R.V. telling the boys to leave her alone; Defendants allege that R.V. yelled at and hit her seatmate in the face. (Id. ¶¶ 8-9; Pis.' Opp. S.M.F. ¶¶ 21-25.) After the altercation, Ms. Richards directed R.V. to move to the empty seat two rows back, (Defs, S.M.F. ¶ 10.) R.V. did not follow Ms. Richard's instructions, (Id. ¶ 11.) Ms. Richards stood up, walked forward to R.V.'s seat, picked her up and moved her two rows back to the empty seat. (Id., ¶ 12.) Ms. Richards then sat down in the seat next to R.V. (Id. ¶ 14.) Plaintiffs allege that while picking up R.V., Ms. Richards "grabbed her by the ribcage/abdomen area and forcibly moved R.V. . . . then sat next to her pinning R.V.'s arms to her sides while wrapping R.V. up in an unwelcome embrace. (Pis.' Opp. S.M.F. ¶ 29.)

         The bus was equipped with a security camera that recorded the incident. (Defs.' S.M.F. ¶ 18; Ex. B.) The day after the incident, Terry and Kelly Varney spent over an hour reviewing the surveillance tape of the bus ride. (Pis.' Opp, S.M.F. ¶ 34.) Plaintiffs allege that Kelly Varney asked Superintendent Hamlin for a copy of the video because R.V.'s counselor was going to use the video in treatment of R.V.'s posttraumatic stress. (Id. ¶¶ 35-36.) Superintendent Hamlin told Kelly Varney "You'll never see that tape, I'll bury it first." (Id. ¶ 37.) When asked what she meant by that statement, Ms. Hamlin responded, "Not only will you never have a copy of that tape; you'll never see it again." (Id.)

         RSU # 67's insurance policy specifically excludes coverage for any claim "for which there would be immunity under the Maine Tort Claims Act in the absence of coverage." (Defs.' S.M.F. ¶ 19; Ex. A 2.)

         MOTION FOR SUMMARY JUDGMENT

         Under M.R. Civ, P. 56, summary judgment is appropriate when review of the parties' statements of material facts and record evidence to which the statements refer, considered in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact that is in dispute and the moving party is entitled to judgment as a matter of law. Beat v. Allstate Ins. Co., 2010 ME 20, ¶ 11, 989 A, 2d 733. A material fact is one that can affect the outcome of the case, and there is a genuine issue when there is sufficient evidence for a factfinder to choose between two competing versions of the facts. Stewart-Dore v. Webster Hosp. Ass'n, 2011 ME 26, ¶ 8, 13 A.3d 773, The evidence offered to establish a dispute as to material fact, submitted in opposition to a motion for summary judgment, "need not be persuasive at that stage, but the evidence must be sufficient to allow a fact-finder to make a factual determination without speculating." Estate of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 19, 60 A.3d 759.

         When acting on a motion for summary judgment, a court may not make inferences based on credibility or weight of the evidence. Arrow Fastener Co. v. Wrabacon, Inc., 2007 ME 34, ¶ 16, 917 A.2d 123 (citing Emerson v. Sweet, 432 A.2d 784, 785 (Me. 1981)). A party who moves for summary judgment is entitled to a judgment only if the party opposing the motion, in response, fails to establish a prima facie case for each element of his cause of action. Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 12, 48 A.3d 774.

         Plaintiffs allege violations of the Maine Civil Rights Act (MCRA), intentional and negligent infliction of emotional distress, and assault and battery.

         I. Counts II and IV: Violation of the MCRA

         The MCRA "was designed to prevent intentional interference with the exercise of rights secured by the laws and constitutions of either the United States or Maine by threats, intimidation, or coercion." Phelps v. President & Trs. of Colby Coll, 595 A.2d 403, 404 (Me. 1991).

Whenever any person, whether or not acting under color of law, intentionally interferes or attempts to intentionally interfere by physical force or violence against a person, damage or destruction of property or trespass on property or by the threat of physical force or violence against a person, damage or destruction of property or trespass on property with the exercise or enjoyment by any other person of rights secured by the United States Constitution or the laws of the United States or of rights secured by the Constitution of Maine or laws of the State or violates section 4684-B, the person whose exercise or enjoyment of these rights has been interfered with, or attempted to be interfered with, may institute and prosecute in that person's own name and on that person's own behalf a civil action for legal or equitable relief.

5 M.R.S. § 4682(1-A) (2016). "[T]he Act provides a means of enforcing existing rights against private parties, but does not expand substantive rights." Phelps, 595 A.2d at 403.

         "Claims brought under the Maine Civil Rights Act ("MCRA"), 5 M.R.S.A. § 4681 et. seq., are interpreted in the same manner as claims brought under 42 U.S.C, § 1983, as the state statute is modeled upon the federal." K v. City of S. Portland, 407 F.Supp.2d 290, 298 (M. De. 2006); see also Jenness v. Nickerson, 637 A.2d 1152, 1158 (Me. 1994); Doe v. Williams, 2013 ME 24, ¶ 72, 61 A.3d 718 (stating that MCRA is patterned after § 1983 and affords a private cause of action for violations of constitutional rights by any person); Marshall v. Town of Dexter, 2015 ME 135, ¶ 16, 125 A.3d 1141 (finding that "a violation of the Maine Constitution ... is interpreted coextensively with his federal civil rights claim brought pursuant to section 1983"). The parties' claims must be addressed "with the understanding that the rights guaranteed by the United States Constitution and the Maine Constitution are coextensive." Bagley v. Raymond Sch. Dep't, 1999 ME 60, ¶ 13, 728 A.2d 127.

         Plaintiffs argue violations of both procedural and substantive due process, which are rights secured by the Fourteenth Amendment.

         A. Substantive Due Process

         Maine has adopted the "shocks the conscience" standard for evaluating substantive due process claims. Norton v. Hall, 2003 ME 118, ¶ 18, 834 A.2d 928. Conduct that shocks the conscience is "so brutal and offensive that it d[oes] not comport with traditional ideas of fair play and decency." Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (citing Breithaupt v. Abram, 352 U.S. 432, 435 (1957)) (quotation marks omitted). The District Court dismissed the Varneys' parallel § 1983 claims under this same standard, Varney v. Richards, No. 1:15-CV-011-NT, 2015 U.S. Dist. LEXIS 57179 (D. Me. Apr. 30, 2015).

         The Law Court has not directly addressed the issue of whether moving a student from one seat to another on a bus violates the student's due process rights. Defendants point to several cases where the "shocks the conscience" standard required the plaintiffs to meet a very high bar, noting that "conscience shocking behavior in the education context has usually involved physical or sexual abuse or excessive punishment." Gomes v. Univ. of Me. Sys., 304 F.Supp.2d 117, 124 (D. Me. 2004). However, Plaintiffs counter with several contradicting cases suggesting that physical restraint in an educational setting may be considered conscious shocking behavior.

         The issue here is whether as a matter of law, moving a student from one seat to another on a bus and then sitting next to her, detaining her in the seat, violates the student's substantive due process rights.[2] This conduct is simply not conscience shocking-it is not "so brutal and offensive" as to offend notions of "fair play and decency." Lewis, 523 U.S. at 847. Picking up and moving a child to a different seat in response to a physical altercation may be offensive to the child's parents, but is not brutal or offensive to "fair play and decency." Id. As the District Court stated, "while Plaintiffs arguably allege that Defendant Richards engaged in inappropriate conduct, Plaintiffs' complaint does not include factual allegations that fairly can be characterized as egregious, outrageous, or conscience-shocking." Varney, 2015 U.S. Dist. LEXIS 57179 at *9 (noting that "[t]he Supreme Court's affirmance of the dismissal of the case in Ingraham, which included a substantive due process theory, suggests that not even 'excessive paddling' would shock the conscience for purposes of federal law" (citing Ingraham v. Wright, 430 U.S. 651, 689 n.5.)).

         Therefore, Defendants' motion for summary judgment is granted as to this count because there is no genuine issue of material fact that is in dispute.

         B. Procedural Due Process: Failure to ...


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