TERRY AND KELLY VARNEY, individually and as parents and next friend of R.V., Plaintiffs,
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
William R. Anderson Justice, Maine Superior Court
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
following facts, viewed in the light most favorable to
Plaintiffs as the non-moving party, are undisputed and
established in the summary judgment record. 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.
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.)
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.)
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.)
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.)
FOR SUMMARY JUDGMENT
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.
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.
allege violations of the Maine Civil Rights Act (MCRA),
intentional and negligent infliction of emotional distress,
and assault and battery.
Counts II and IV: Violation of the MCRA
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
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
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.
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.
argue violations of both procedural and substantive due
process, which are rights secured by the Fourteenth
Substantive Due Process
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,
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.
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. 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
Defendants' motion for summary judgment is granted as to
this count because there is no genuine issue of material fact
that is in dispute.
Procedural Due Process: Failure to ...