United States District Court, D. New Hampshire
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
DiClerico, Jr. United States District Judge
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. 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.
Motion to Certify
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.
response, MSD argues that certification is unnecessary
because the issue can be addressed based on existing 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).
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.
Motion for Summary Judgment
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.
Standard of Review
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)).
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.
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.
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
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.
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 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.” 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.
Policy requires teachers and staff to report suspected abuse
of students. 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
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.
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
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. 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.
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.
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.
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.
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
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.
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
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
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.
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.
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. 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.
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.
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
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 ...