United States District Court, D. Maine
ROBERT and JENNY RAYMOND, individually and o/b/o of their minor son, J.R. Plaintiffs,
MAINE SCHOOL ADMINISTRATIVE DISTRICT 6, PAUL PENNA and, JENNIFER DONLAN, Defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
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.
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.
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)
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.
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.
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.
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.
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.
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.
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.
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).
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.
POSITIONS OF THE PARTIES
The Defendants' Memorandum
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).
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.
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.
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