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Raymond v. Maine School Administrative District 6

United States District Court, D. Maine

May 14, 2019

ROBERT and JENNY RAYMOND, individually and o/b/o of their minor son, J.R. Plaintiffs,
v.
MAINE SCHOOL ADMINISTRATIVE DISTRICT 6, PAUL PENNA and, JENNIFER DONLAN, Defendants.

          ORDER ON DEFENDANTS' MOTION TO DISMISS

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

         Two parents on behalf of themselves and their disabled son brought this lawsuit against a school district and two school employees asserting claims under 20 U.S.C. § 1681(a) (Title IX), 29 U.S.C. § 794(a) (§ 504 of the Rehabilitation Act of 1973), and 42 U.S.C. § 1983 stemming from a sexual assault committed against their son by another disabled student during a summer school program. The Defendants moved to dismiss the Plaintiffs' § 504 and § 1983 claims. The Defendants seek to dismiss the § 504 claim on the ground that the Plaintiffs failed to exhaust administrative remedies and seek to dismiss the § 1983 claim on the ground that the Plaintiffs failed to allege facts sufficient to allege a failure to protect claim and, if there are sufficient facts, the Defendants say they are entitled to qualified immunity. The Court concludes that in the circumstances alleged in the Complaint, the Plaintiffs are not required to exhaust administrative remedies under § 504 and denies the motion to dismiss on the § 504 claim. The Court further concludes that under recent First Circuit authority, a dismissal of the § 1983 claim is premature, and the Court dismisses without prejudice the motion to dismiss on the § 1983 claim.

         I. PROCEDURAL HISTORY

         On September 18, 2018, Robert and Jenny Raymond, individually and on behalf of their minor son, J.R., (the Plaintiffs) filed suit against Maine School Administrative District 6 (MSAD 6), MSAD 6's Superintendent, Paul Penna, and, MSAD 6's Director of Special Services, Jennifer Donlan, (the Defendants) alleging violations of Title IX, § 504, and J.R's constitutional rights. Compl. (ECF No. 1).[1] On November 19, 2018, the Defendants moved to dismiss Counts Two and Three of the Complaint. Mot. to Dismiss Counts II and III of Pls.' Compl (ECF No. 9) (Defs.' Mot.). On December 21, 2018, the Plaintiffs responded, Pls.' Opp'n to Defs.' Mot. to Dismiss Counts II and III of Pls.' Compl. (ECF No. 16) (Pls.' Opp'n), and on January 3, 2019, the Defendants replied. Reply Mem. in Support of Mot. to Dismiss Counts II and III Pls.' Compl. (ECF No. 17) (Defs.' Reply).

         II. FACTS[2]

         A. The Parties

         Robert and Jenny Raymond reside in Standish, Maine with their autistic son, J.R., who is a seventeen-year-old sophomore at Bonney Eagle High School and receives special education and related services from MSAD 6 through its Individualized Education Program (IEP). Compl. ¶¶ 1-3. J.R has been a student at MSAD 6 schools since kindergarten. Id. ¶ 3.

         MSAD 6 is a public entity within the meaning of Title IX and § 504 because it is a recipient of federal funding under applicable programs. Id. ¶ 7. MSAD 6's offices are located in Buxton, Maine. Id. ¶ 4. MSAD 6 is responsible “for providing education to residents of Buxton, Hollis, Limington, Standish, and Frye Island, Maine.” Id. Paul Penna is the Superintendent of Schools of MSAD 6 and is “charged with supervision and management of all schools and all administrative departments within MSAD 6.” Id. ¶ 5. Jennifer Donlan, as the Director of Special Services for MSAD 6, is “charged with supervision and management of the provision of special education and related services, including those provided to J.R.” Id. ¶ 6.

         B. Background

         Children with disabilities or special needs, like J.R., are more vulnerable to sexual assault than other children because-accurate or not-other students perceive them as passive or weak as well as “being trained by well-meaning caregivers to be compliant.” Id. ¶ 11. Children with disabilities or special needs are also at an increased risk of victimization because they “may exhibit an intense desire to fit in and befriend other children[, ]” and this desire to be accepted and “inability to set boundaries can leave these children ‘vulnerable to coercion'” to engage “in sexual or other acts that they believe, or are told to believe, will lead to acceptance and friendship.” Id. ¶ 12.

         MSAD 6 has “a number of policies relative to student rights and responsibilities, codes of conduct, and procedures for preventing and addressing peer-to-peer harassment and violence to protect all students enrolled in MSAD 6 schools.” Id. ¶ 10. J.R.'s 2016-17 IEP provided Extended School Year (ESY) services from July 10, 2017 to August 11, 2017, which included “transportation and participation in a specialized instruction program.” Id. ¶ 14. “J.R.'s 2016-17 IEP states as one of J.R.s' unique needs [he] will continue to work on boundaries regarding who are safe and appropriate individuals to share personal information with, ” and the IEP further states “MSAD 6 will provide 2 students to 1 staff in all areas with the exception of lunch and social activities.” Id. ¶ 13.

         C. The Events

         B.L., a sixteen-year-old student at Bonney Eagle High School, who has received special education and related services for a number of years, also participated in the 2017 ESY summer program. Id. ¶ 15. “B.L. has been the subject of one or more psychological evaluations and classroom or other clinical observations.” Id. ¶ 17. B.L. has received special education and related services under an IEP, which required MSAD 6 to provide him with “similar or more restrictive level of supervision and oversight as it did with J.R.” Id. ¶ 16. MSAD 6 “supplemented B.L.'s IEP with one or more of the following: Behavior Intervention Plan(s) (BIP), Functional Behavior Assessment(s) (FBA), and/or Positive Behavioral Interventions & Supports (PBIS) to address his behavior at school.” Id. ¶ 18. B.L. “sexual assaulted, or engaged in highly inappropriate sexual activity with another special education student” that MSAD became aware of shortly thereafter. Id. ¶ 19. MSAD 6 was also aware that in June 2017, B.L. allegedly assaulted a minor at the Maine Mall. Id. ¶ 20. Based on these events, MSAD 6 was aware that B.L. posed a risk of sexual violence to his peers. Id. ¶ 21.

         On July 10, 2017, the first day of the ESY summer program, B.L. told J.R. to meet him in the bathroom at approximately 1:40 p.m. Id. ¶ 22. J.R. followed B.L. into the bathroom and B.L. sexually assaulted him in a bathroom stall between 1:45 p.m. and 1:51 p.m. Id. ¶ 24. MSAD 6 staff were unaware that J.R. and B.L. had gone to the bathroom and were there together. Id. ¶ 25. That same day, at the Raymonds' home, J.R. told his mother, Jenny Raymond, about the sexual assault; Mrs. Raymond took J.R. to the emergency room where he informed the hospital personnel he had been sexually assaulted. Id. ¶¶ 26-27. A “rape kit” test confirmed that J.R. had been sexually assaulted. Id. ¶ 27. The Raymonds informed MSAD 6 and local law enforcement of the sexual assault. Id. ¶ 28.[3]

         Pursuant to Title IX, MSAD 6 investigated the incident in August and September 2017, reviewing documents and other materials, including law enforcement's video-taped interview of J.R. Id. ¶ 29. In MSAD 6's September 26, 2017 written report, it concluded “that it was more likely than not that J.R. was the victim of a gross sexual assault on July 10, 2017.” Id. ¶ 30. As a result of the sexual assault, J.R. experienced severe emotional distress and has been diagnosed with Post Traumatic Stress Disorder (PTSD). Id. ¶ 31. The Raymonds “incurred significant costs and expenses on behalf of J.R., including but not limited to those related to medical and mental health treatment for J.R., legal fees, and costs of litigation.” Id. ¶ 32.

         III. LEGAL STANDARD

         Rule 12(b)(6) requires dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other words, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v Twombly, 550 U.S. 550, 570 (2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Plausible means “something more than merely possible or merely consistent with a defendant's liability.” Germanowski v. Harris, 854 F.3d 68, 71 (1st Cir. 2017) (citations and internal quotation marks omitted). This is a “‘context-specific' job that compels [the Court] ‘to draw on' [the judge's] ‘judicial experience and common sense.'” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (quoting Iqbal, 556 U.S. at 679).

         This is a two-step process. Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015). “First, the court must distinguish ‘the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (citation omitted). “Second, the court must determine whether the factual allegations are sufficient to support ‘the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (citation omitted).

         IV. POSITIONS OF THE PARTIES

         A. The Defendants' Memorandum

         The Defendants move to dismiss with prejudice Count Two (§ 504) and Count Three (§ 1983) of the Complaint. Defs.' Opp'n at 1. The Defendants say “[t]his is a negligence claim disguised as a federal case brought under Title IX of the Education Amendments of 1972, 20 U.S.C. [§]§ 1681, et seq, Section 504 of the Rehabilitation Act of 1973 (the ‘Rehabilitation Act'), and 42 U.S.C. § 1983.” Id. at 2 (footnote omitted).

         The Defendants contend that the Plaintiffs' § 1983 claim is premised on a “vague” basis in that “the Defendants violated Plaintiff's constitutional rights, including his right to equal protection under the law and substantive due process rights.” Id. at 4 (citing Compl. ¶ 49) (internal quotation marks omitted). The Defendants aver that to state a substantive due process claim, the Plaintiffs need to show a “deprivation of a protected interest in life, liberty or property that was caused by government conduct.” Id. (citing Rivera v. Rhode Island, 402 F.3d 27, 33-34 (1st Cir. 2005)). Because J.R.'s injuries were caused by another student, not government actors, the Defendants say the Plaintiffs are asserting a failure to protect claim under § 1983. Id. at 4-5.

         Quoting DeShaney v. Winnebago County, 489 U.S. 189 (1989), the Defendants note that the affirmative duty to protect “arises not from the State's knowledge of the individual's predicament or from expressions of intent to help him but from the limitation which it has imposed on his freedom to act on his own behalf . . . through incarceration, institutionalization, or other similar restraint of personal liberty.” Id. at 5 (quoting DeShaney, 489 U.S. at 200). In the Defendants' eyes, however, the Complaint is devoid of factual allegations to show a “special relationship” between J.R. and any of the Defendants. Id. The Defendants claim that “[t]he First Circuit has recognized that the Circuit Courts addressing this issue have uniformly rejected a special relationship between a student and a public school, holding that school children are not captives of the school authorities and the basic responsibility for their care remains with their parents.” Id. at 5-6 (internal quotation marks omitted) (quoting Hasenfus v. LaJennesse, 175 F.3d 68, 71 (1st Cir. 1999) (collecting cases)). The Defendants say the Plaintiffs also fail to state a § 1983 substantive due process claim because they do not allege conduct that “shocks the conscience.” Id. at 6.

         In the alternative, the Defendants argue that if the Court finds the Plaintiffs have sufficiently pleaded a § 1983 claim, the individual Defendants are entitled to qualified immunity. Id. In determining qualified immunity, the Defendants aver that courts analyze “whether the facts make out a constitutional violation, and [] whether the violated right was clearly established at the time that the offending conduct occurred.” Id. at 7 (citing Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014)). According to the Defendants, the Plaintiffs have not claimed that either individual Defendant violated J.R.'s constitutional rights, rather they failed to adequately train MSAD 6 staff. Id. (citing Compl. ¶¶ 56, 58). The Defendants argue to state claim under a theory of failure to train, “the Plaintiff[s] 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 city can reasonably be said to have been deliberately indifferent to the ...


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