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B.A. v. Manchester School District SAU 37

United States District Court, D. New Hampshire

July 18, 2017

B.A., Individually and as p/n/f of J.F.
Manchester School District SAU 37 and Donna M. Varney Opinion No. 2017 DNH 141


          Joseph DiClerico, Jr. United States District Judge

         B.A. brought suit in state court on her own behalf and on behalf of her minor and disabled son, J.F., alleging federal and state claims against the Manchester School District (“MSD”) and a former teacher in the school district, Donna M. Varney. The defendants removed the case to this court. MSD moves for summary judgment, and B.A. objects.[1] B.A. moves to certify questions pertaining to the constitutionality of RSA 507-B:5 and:2 to the New Hampshire Supreme Court, and MSD objects.

         I. Motion to Certify

         B.A. moves to certify two questions to the New Hampshire Supreme Court to determine whether RSA 508-B:5 and:2, as applied in this case, violate the New Hampshire Constitution.

         In its response, MSD argues that certification is unnecessary because the issue can be addressed based on existing New Hampshire law.

         The New Hampshire Supreme Court provides a means for this court to certify a question of New Hampshire law “which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions” of the New Hampshire Supreme Court. N.H. Sup. Ct. Rules, Rule 34; see also Old Republic Ins. Co. v. Stratford Ins. Co., 777 F.3d 74, 86 (1st Cir. 2015). On the other hand, “[w]hen state law is sufficiently clear . . . to allow a federal court to predict its course, certification is both inappropriate and unwarranted.” Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 14 (1st Cir. 2002). Whether to certify questions under Rule 34 is a matter left to the discretion of the court. Nieves v. Univ. of Puerto Rico, 7 F.3d 270, 275 (1st Cir. 1993).

         As demonstrated below in the discussion of B.A.'s state law claims, New Hampshire law is sufficiently clear on the constitutional issues B.A. raises to allow this court to predict the course the New Hampshire Supreme Court would take. For that reason, the court will decide the constitutional challenge without certifying the questions.

         II. Motion for Summary Judgment

         MSD moves for summary judgment on all of B.A.'s claims against it on the grounds that she cannot prove a constitutional violation, that statutory and discretionary function immunity bar her state common law claims, that she has not stated a claim for “intentional tort, ” and that her claim based on the New Hampshire Constitution is not cognizable. B.A. objects, arguing that MSD violated J.F.'s substantive due process right to bodily integrity and challenging MSD's assertion of immunity.

         A. Standard of Review

         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). The facts and reasonable inferences are taken in the light most favorable to the nonmoving party. McGunigle v. City of Quincy, 835 F.3d 192, 202 (1st Cir. 2016). “On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing ‘that there is an absence of evidence to support the nonmoving party's case.'” OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

         B. Background

         J.F. was eight years old when he was assigned to Varney's self-contained classroom for the 2012-2013 school year at Jewett Street School in the MSD. The students in the classroom had various disabilities that precluded them from being integrated into the school's general population. The classroom also had two teaching assistants, Alicia Otis and Brianne Corey.

         Varney was a full-time special education teacher at the Jewett Street School. She had previously worked in the MSD, at a different school, as a teacher's aide. She received her degree and certification as a special education teacher in 2007 and began work as a special education teacher at the Jewett Street School for the 2007 to 2008 school year.

         Jennifer Frietas was the MSD Special Education Coordinator. Frietas, who was a friend of Varney's and socialized with her every week, assigned J.F. to Varney's classroom without first reading J.F.'s Individualized Education Plan (“IEP”). Peter Lubelczyk was the principal at the Jewett Street School and had been in that position since August of 2008. Karen Burkush was the MSD Assistant Superintendent.

         J.F. was born with impairments, and when he was five, he was given diagnoses of a significant Pervasive Developmental Delay and being on the autism spectrum. He has a limited ability to express himself through language. J.F. also has impairments in his ability to chew and swallow, which causes him to be at risk of choking and aspiration, and he has experienced difficulty eating that resulted in periods of weight loss. In addition, J.F. has muscle issues that make it difficult for him to walk and to coordinate other functions such as eating. J.F.'s IEP provided that he needed to be watched during eating because he could choke or gag on food.

         MSD had a “Student Code of Conduct” that provided principles “to contribute to a safe and productive learning environment that is of benefit to the entire community.” Obj. to Mot. for S.J. doc. 28, Ex. 28, at 1. MSD also issued rules as “Manchester School District Policy.” In May of 2012, MSD amended a rule pertaining to the use of physical restraint, which is identified as “Students 116.2” (“Rule 116.2”).

         Rule 116.2 was “adopted to limit the use of student restraint practices in accord with state law and to define the circumstances and manner in which physical restrain[t] is deemed appropriate.” Doc. 28, Ex. 21. Rule 116.2 also required the district to “ensure all appropriate personnel are trained in the use of physical restraint procedures” and provided that “[t]raining of staff shall include a review of NH RSA Chapter 126-U.”[2] Obj. to Mot. for S.J. doc. no. 28-21, at p. 2. RSA Chapter 126-U prohibits the use of dangerous restraints and behavior control techniques, including restraints or techniques that obstruct “a child's respiratory airway or impairs the child's breathing, ” that involve “pushing on or into the child's mouth, ” and that “unnecessarily subject[] the child to ridicule, humiliation, or emotional trauma.” RSA 126-U:4, I & IV. The training required under Rule 116.2 also included Crisis Prevention Instruction.

         The MSD Policy requires teachers and staff to report suspected abuse of students.[3] In addition, teachers, school officials, school nurses and any other child workers are required by state law to report instances of suspected child abuse. RSA 169-C:29.

         Frietas testified at her deposition that special education teachers were included in the personnel to be trained under Rule 116.2. Burkush testified at her deposition that the MSD superintendent told the school principals that they were required to implement Rule 116.2. Lubelczyk, however, understood that the training required by Rule 116.2 was not mandatory and that it was not his responsibility to be sure that Varney received the training. Lubelczyk did not start recording who received training until the 2014 to 2015 school year. Lubelczyk himself did not receive training until 2016.

         Varney received all of J.F.'s school records before the first day of school in August of 2012 and read the records, including records that explained that J.F. was medically fragile and had eating problems. From that information, Varney knew that J.F. was at risk for choking and gagging and that he was weak and unsteady on his feet. Varney also knew that J.F. was not eating enough food and that he had lost weight.

         Because of J.F.'s issue with eating, Varney used a notebook to record what J.F. ate during the day. Varney gave the notebook to B.A. at the end of the day, and B.A. returned it to Varney in the morning.[4] B.A. usually read Varney's notes to keep track of what J.F. was eating and would get help if she did not understand the words Varney used.

         During her deposition, counsel for MSD showed B.A. the notebook and asked her about a note that Varney wrote, which is dated October 9, 2012. In the note, Varney stated that J.F. had “an okay day, ” that he did not eat his snack, and that when he refused to eat lunch she took his chair away until he ate about a third of the food. B.A. responded that she did not remember reading the note, did not know that Varney was requiring J.F. to stand while eating, and that she would have talked to Varney if she had known of it.

         Although nothing in the IEP required or allowed Varney to force J.F. to eat, Varney undertook coercive methods to address his eating. Alicia Otis, one of the teacher's aides in Varney's classroom, saw Varney force feed J.F. five or more times between September of 2012 and January of 2013. Brianne Corey, the other teacher's aide, also saw Varney force feed J.F.

         In the feeding procedure, Varney would pinch J.F.'s mouth open with her hands and push food into his mouth. J.F., who was at risk of choking and aspirating due to his disabilities, cried and screamed during this procedure. When J.F. tried to spit out the food, Varney covered his mouth with her hand until he swallowed. Varney later admitted to the Manchester police that her force feeding of J.F. was inappropriate.

         Otis was concerned that Varney's roughness would cause J.F. to have a seizure. J.F. would try to rock himself to sleep to avoid the abuse. The force feeding incidents so exhausted J.F. that he would put his head on the desk afterwards and sleep.

         In addition to the force feeding, Varney forced J.F. to stand up during lunch if he refused to eat. These incidents occurred more frequently than the force feeding, approximately three or four days of each school week. Varney would push on J.F.'s back to get him to stand and would then take his chair away. J.F. reacted with rocking or falling asleep or falling on the floor and screaming and crying.

         Varney also frequently yelled at J.F. to get him to eat. Otis believed Varney yelled at J.F. to scare him into eating and to show him that she was in charge. Other staff members at the Jewett Street School heard Varney yelling and asked Otis about it. During the fall, Otis and Corey discussed their disagreement with Varney's tactics and what to do about it.

         During the 2011 to 2012 school year, the school nurse heard Varney yelling at her students, which she found to be inappropriate. Although the nurse did not remember specific dates during her deposition, she testified that she probably reported the behavior to Lubelczyk then. The behavior continued, however, and the school nurse believes that she complained to Lubelczyk more than once about Varney's treatment of her students.

         During the 2012 to 2013 school year, another teacher at the school told one of Varney's teacher's aides that she complained to Lubelczyk about Varney's conduct. Lubelczyk met with Varney to discuss the tone she used with her students and believed that Varney understood that she needed to speak reasonably to children. Lubelczyk concluded that Varney was using “tough love” because she wanted her students to succeed. Lubelczyk asserts that he was not aware of any physical abuse by Varney. The school nurse observed Varney yelling at J.F. to eat more than once and yelling at him to eat even after he had a feeding tube.

         In April of 2013, Otis complained to Lubelczyk about Varney's treatment of her students. A paraprofessional from another classroom reported an incident that occurred during bus dismissal on April 10, 2013, when Varney was overly forceful with one of her students. Lubelczyk reported the complaints to Burkush who instructed Lubelczyk that Varney must leave the building immediately and that the complaints must be reported to the Department for Children, Youth, and Families.

         Varney left the building and never returned. She eventually resigned her position. Varney was charged with simple assault based on her treatment of another student in her classroom.[5] A special education expert retained by B.A., Judy Williams, MEd, CAGS, states that Varney did not have the appropriate credentials and training to teach a special education self-contained classroom. Williams also states that Varney's yelling should have alerted Lubelczyk to closely monitor Varney's conduct in the classroom, which Lubelczyk did not do.

         B.A. brought suit against MSD and Varney, alleging federal claims under 42 U.S.C. § 1983 and state law claims. B.A. alleges in Count II that MSD violated J.F.'s rights under the Fourth and Fourteenth Amendments and alleges in Count III that MSD violated the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. B.A. alleges claims for battery, assault, and “intentional tort” against Varney in Counts IV, V, and IX. In Counts VII, VIII, and XI, B.A. alleges that MSD was negligent in its supervision, custody, care, and education of J.F., that MSD was negligent in hiring and retaining Varney as a teacher, and that MSD violated J.F.'s right to equal protection under the New Hampshire Constitution.

         MSD moves for summary judgment on Count II on the grounds that B.A. cannot prove a violation of the Fourth Amendment, substantive due process, or a constitutional violation based on a failure to train. MSD also contends that B.A. cannot prove a violation of the ADA or the Rehabilitation Act, that it is protected from liability on the state law claims by immunity provided by RSA 507-B:5 and discretionary function immunity, that Count IX does not state a cause of action, and that B.A. cannot prove a claim based on the New Hampshire Constitution.

         B.A. objects to summary judgment, arguing that her substantive due process claim in Count II survives summary judgment because a genuine issue of material fact exists as to whether MSD was deliberately indifferent to the need to train and supervise its staff. She contends that the ADA and Rehabilitation Act claim in Count III is viable because a genuine issue of material fact exists as to whether J.F. was a disabled student in need of ...

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