United States District Court, D. New Hampshire
T.F. and W.M. by p/n/f Ashley M. and Kevin M.
Spaulding Youth Center, Colleen Sliva, Auburn School District, School Administrative Unit 15, and Anne McSweeney Opinion No. 2016 DNH 175
N. Laplante, United States District Judge
case implicates a school's and school district's
duties to protect children from and notify parents of
intra-student sexual harassment. Ashley M. and Kevin M.
brought this action on their own behalf, as well as on behalf
of their minor children, T.F. and W.M., after learning that
T.F. was sexually harassed by another student while attending
Spaulding Youth Center as part of an agreement with the
Auburn School District.The plaintiffs contend that the
defendants' actions -- or inaction -- violated Title IX
of the Education Amendments of 1972, 20 U.S.C. §§
1681 et seq.,  deprived T.F. of his right to equal access
to education giving rise to a claim under 42 U.S.C. §
1983, and violated duties allegedly owed by various
defendants to various of the plaintiffs under several related
theories of negligence. This court has jurisdiction over this
matter under 28 U.S.C. §§ 1331 (federal question),
1343 (civil rights), and 1367 (supplemental jurisdiction).
defendants moved to dismiss several of the plaintiffs'
claims. See Fed.R.Civ.P. 12(b)(6). The plaintiffs amended
their complaint as of right in response, see Fed. R.
Civ. P. 15, prompting the defendants to renew their motions
to dismiss. The plaintiffs subsequently withdrew several of
their negligenceclaims and moved to amend their complaint a
second time, this time to remove the withdrawn claims and add
factual allegations in support of the plaintiffs'
negligence claims against McSweeney. For the reasons
discussed more fully infra Part IV, the court denies
their First Amended Complaint, the plaintiffs assert a
variety of claims, only five of which remain subject to
defendants' motions to dismiss. Specifically, the various
defendants move to dismiss T.F.'s § 1983 claims
against the Spaulding defendants (counts 3 and 4); T.F.'s
negligence claim against McSweeney (count 8); and
Ashley's and Kevin's negligence claims against
McSweeney and the Spaulding defendants (counts 9 and 10)
Having heard oral argument, the court grants the
defendants' motions as to Ashley's and Kevin's
negligence claims and denies them as to the rest.
Applicable legal standard
analyzing a complaint in the Rule 12(b)(6) context,
the court accepts as true all well-pleaded facts set forth in
the complaint and draws all reasonable inferences in the
plaintiff's favor. See, e.g., Martino v.
Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010). The
complaint, read in that light, must include "factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Martinez v. Petrenko, 792 F.3d 173,
179 (1st Cir. 2015) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). With the facts drawn in this manner,
"questions of law [are] ripe for resolution at the
pleadings stage." Simmons v. Galvin, 575 F.3d
24, 30 (1st Cir. 2009).
case arises from events that occurred while T.F., a minor,
attended Spaulding between May 2013 and June 2015. T.F. has
educational disabilities defined under the Individuals with
Disabilities Education Improvement Act, 20 U.S.C. §
1400, et seq., as autism, emotional disturbance, and
"other health impaired." Prior to his arrival at
Spaulding, he underwent a series of psychiatric
hospitalizations after he engaged in physically aggressive
and sexualized behaviors. Toward the end of May 2013,
T.F.'s individualized education plan ("IEP")
team determined that those behavioral issues made a
residential placement appropriate for T.F., and arranged for
him to enter the residential program at Spaulding. He
remained in residential treatment from May 2013 until June
2014, when he transferred to the day program at Spaulding.
thereafter, the plaintiffs allege, T.F. began engaging in
aggressive behavior at home. Though Auburn arranged for
Spaulding to provide in-home services from a licensed social
worker to T.F. at home for a period of time, his IEP team
decided to terminate those services in November
2014. During that period, T.F. continued to
engage in sexualized behaviors.
T.F. attended the day program at Spaulding, a female student
there began to interact with him in a sexual manner. On March
6, 2015, T.F. described some of that behavior to staff
members at Spaulding, including that the female student spoke
crudely to him, had grabbed his buttocks at one time, and had
stuck out her chest while saying, "I know what you are
looking at, " and told him to "start sucking."
First Amended Compl. ¶¶ 37-38. T.F.
expressed discomfort with this behavior, and told Spaulding
staff that he felt uncomfortable, even frightened, around
this student as a result. Id. ¶¶ 37-39.
continued to report encounters with this student to various
Spaulding staff members between March 6 and May 27, 2015.
According to T.F., the student attempted to hug him, remain
near him, "ma[de] comments to him, " breathed
heavily and panted near the back of his neck as she walked
past him, followed him around, and "creep[ed] him
out." Id. ¶¶ 40-46. More than once,
he expressed fear at the idea of attending school because of
this activity and concern that the staff failed to
acknowledge the student's behavior and did nothing to
intervene. Id. ¶¶ 39-42.
timeframe, T.F.'s IEP team met at least thrice to discuss
his progress and future placement. Id. ¶¶
43, 45, 47. At a meeting on March 20, 2015, the team
determined that he no longer required a placement at
Spaulding and that another educational venue would suit his
needs for the 2016-2017 schoolyear. Id. ¶¶
43. The plaintiffs allege that the team did not discuss
the female student's behavior toward T.F. at any of those
meetings, id. ¶¶ 43, 45, 47, and did not
notify T.F.'s parents of those incidents, id.
¶¶ 43, 45. The plaintiffs further allege that
the report provided to Auburn and T.F.'s parents upon his
discharge from Spaulding on June 26, 2015, lacked any mention
of the female student's behavior toward T.F. or his
discussions of those incidents with his counselor. Id.
September 30, 2015, several months later and after T.F. began
the 2016-2017 school year at a new school, Ashley discovered
that T.F. had sexually assaulted his younger sister, W.M. on
at least one occasion. T.F. was hospitalized and, upon his
release in October, went to live with his grandparents in
another state. Only in late October 2015, after Ashley
requested T.F.'s records from Spaulding, the plaintiffs
allege, did she and Kevin receive notice from the school
about the incidents between T.F. and the female student.
Ashley forwarded T.F.'s records to the New Hampshire
Department of Children, Youth, and Families. DCYF opened an
investigation and interviewed T.F., who disclosed that the
female student sexually assaulted him at Spaulding. See
Id. ¶¶ 69-70.
conducted a psycho-sexual evaluation of T.F. On the basis of
that examination, Ashley and Kevin unilaterally placed T.F.
in a residential school that specializes in educating
students who have engaged in sexualized behaviors. The
plaintiffs then filed this action on April 22, 2016, seeking
to recover from the Auburn and Spaulding defendants for
violations of Title IX, a deprivation of rights under §
1983, and common law negligence. The plaintiffs have
withdrawn certain of their claims, as discussed
supra, and the defendants ...