Berry ex rel. HNBV v. Rsu 13 Sch. Bd.

• Decision Date: 24 February 2016
• Docket Number: 2:15-cv-00146-JAW
• Parties: BETHANY A. BERRY, o/b/o Minor Child HNBV, Plaintiff, v. RSU 13 SCHOOL BOARD, et al., Defendants.
• Court: U.S. District Court — District of Maine

BETHANY A. BERRY, o/b/o Minor Child HNBV, Plaintiff,
v.
RSU 13 SCHOOL BOARD, et al., Defendants.

2:15-cv-00146-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

February 24, 2016

ORDER ON MOTION TO DISMISS

As civil rights statutes are not intended to be a font of tort law, the Court grants a motion to dismiss a complaint that resonates in tort, not constitutional law, and dismisses without prejudice several state law claims to allow the plaintiff, if he wishes, to bring those claims in state court.

I. PROCEDURAL BACKGROUND

On April 21, 2015, certain Plaintiffs filed a complaint against the RSU 13 School Board and other named Defendants associated with the School Board or Oceanside High School within RSU 13. Compl. (ECF No. 1). On May 1, 2015, the Court granted a motion to amend the complaint to allow the Plaintiffs to file a new proposed complaint in the name of an adult plaintiff and the initials of the minor for whom the lawsuit was being brought. Order (ECF No. 11). On May 11, 2015, the

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Plaintiff Bethany A. Berry filed an amended complaint in accordance with the Court's May 1, 2015 Order.¹ Am. Compl. (ECF No. 14).

On June 26, 2015, the Defendants moved to dismiss the Amended Complaint. Defs.' Mot. to Dismiss (ECF No. 16) (Defs.' Mot.). On July 17, 2015, the Plaintiff filed a response in opposition to the motion to dismiss. Pls.' Reply with Incorporated Mem. of Law in Opp'n to Defs.' Mot. to Dismiss (ECF No. 17) (Pl.'s Opp'n). On July 28, 2015, the Defendants filed a reply. Defs.' Reply to Pls.' Reply (Defs.' Reply).

II. THE AMENDED COMPLAINT

A. The Parties

The Plaintiff alleges that HNBV is a resident of Rockland, county of Knox, state of Maine, and that HNBV, a minor, is a student at Oceanside High School East (Oceanside). Am. Compl. ¶ 9. The Plaintiff alleges that Defendant RSU 13 School Board is the school board responsible for adopting policies for Oceanside in Rockland, Maine. Id. ¶ 10. The Plaintiff says that Defendant Steve Roberts was the Chair of the RSU 13 School Board and a member of the RSU 13 Policy Committee, that Defendant Kenneth Pride is a teacher and ski club co-coordinator at Oceanside, that Defendant Paul Desaulniers is a science teacher and ski club co-coordinator at

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Oceanside, that Defendant Lewis Collins was the RSU 13 school superintendent, that Defendant Sherman Hoyt is a member of the RSU School Board and the Chair of the RSU 13 Policy Committee, that Defendant Ilmi Carter is the school nurse at Oceanside, and that Defendant Elaine Ernest is an Ed Tech at Oceanside. Id. ¶¶ 11-17.

B. The Alleged Facts²

The Plaintiff alleges that on January 20, 2014, the RSU 13 Ski Club at Oceanside transported HNBV to Sugarloaf Mountain in Franklin County, Maine with the RSU 13 ski club from Oceanside East High School in Rockland, Maine. Id. ¶ 18. The Plaintiff says that his mother, Bethany A. Berry, wrote Oceanside to keep HNBV off the dangerous ski trials, but HNBV sustained multiple injuries and a concussion, causing him to defecate, lose consciousness, and to chip three of his teeth and dislocate a fourth tooth. Id. ¶ 19. HNBV asserts that he exercised his Fourteenth Amendment procedural due process right to refuse medical treatment and declined to go in an ambulance. Id. ¶ 20. When Mr. Pride arrived at the ski clinic, however, he touched HNBV with unclean hands and informed him that "You're going in the ambulance because I'm not getting sued." Id. At the hospital, Mr. Desaulniers ordered HNBV to "Stop being such a big baby" and he humiliated HNBV by causing him to urinate in a prone position. Id. ¶ 21.

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HNBV sustained a loss of consciousness and fecal matter, a contusion to the chest and back, dental trauma, tooth subluxation, a hematoma to the scalp and neck, a puncture wound to his tongue, and profuse bleeding from his mouth. Id. ¶ 22. HNBV was left in his own excrement for hours and underwent a number of x-rays and CT scans. Id. Also, he dislocated his tooth, pushing it forward. Id. ¶ 23. This tooth may never return to its original position. Id. The dislocated tooth pushed the surrounding teeth causing pain and weakness to those teeth. Id. HNBV also lost irreplaceable enamel on his teeth and he had never had a cavity on any of his permanent teeth. Id. In addition, HNBV was told that he had chipped teeth embedded in his tongue necessitating surgery of his tongue. Id. ¶ 24. Furthermore, HNBV sustained a range of injuries, from extreme sensitivity in his teeth and weight loss, to sensitivity to light, sound, and temperature due to the concussion. Id. ¶¶ 25-28.

The Plaintiff alleges that his treating physician had authorized a handicapped placard for HNBV and that when he arrived at school, the handicapped entrance was locked and Ms. Ernst told HNBV that he could not use the handicap entrance and would have to use the front door with bustling students pouring in. Id. ¶ 29.

The Plaintiff also says that during March and April 2014, he was prohibitively hazed and bullied for the injuries he had sustained on January 20, 2014. Id. ¶ 32. He claims that both Oceanside faculty and students verbally and physically hazed him for wearing sunglasses. Id. The Plaintiff alleges a pattern of violence that persists. Id.

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C. The Theories of Action

The Plaintiff asserts the following theories of action:

(1) Count One—a 42 U.S.C. § 1983 claim for excessive force under the Fourth Amendment;

(2) Counts Two, Three and Four—42 U.S.C. § 1983 claims for the Defendants' failure to establish or maintain adequate written policies, procedures, and guidelines for Oceanside ski trips, governing the use of safety equipment, the constitutional right of a student to refuse treatment, the need to have an emergency contact when a student is injured, the failure to establish policies of proper decorum when a student is injured, the failure to have an use of force policy, the failure to have a written policy on responding to an injured student, the failure to establish a buddy system for the field trip, the failure to have a written policy on how to respond to a student's dental injury, the failure to have a written policy on the use of chest restraints, the failure to have a written policy on hypothermia for students attending a high school ski trip, the failure to have a written policy on basic first aid, the failure to have a written policy on proper handwashing procedures, the failure to have a written policy on how to ski within control, the failure to have a written policy on inspection of student ski equipment, the failure to have a written policy for maintaining RSU 13 employee electronic mail to respond to Maine public document requests, and the failure to have a written policy about the proper investigation of allegations of student hazing;

(3) Count Five—42 U.S.C. § 1983 claim for violation of a custom or policy of RSU 13 policy JJIF, Management of Concussion and Other Head Injuries;

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(4) Count Six—42 U.S.C. § 1983 claim for violation of RSU 13 policy CHD for failure to inform the RSU 13 School Board of the need for policies set forth in Counts Two through Four;

(5) Count Seven—42 U.S.C. § 1985(3) claim because two or more Defendants interfered with HNBV's civil rights as described in Counts Two through Four;

(6) Count Eight—42 U.S.C. § 1983 claim for violation of procedural and substantive due process in the United States and Maine Constitutions for hazing and bullying HNBV and a 20-A M.R.S. §§ 6553-54 claim for hazing and bullying HNBV;

(7) Count Nine—5 M.R.S. § 4593, Maine Human Rights Act claim for wrongful denial of access to a handicapped entrance;

(8) Count Ten—14 M.R.S. § 6051, Maine equitable relief for violations of civil, constitutional and human rights, if there are no adequate remedies at law;

(9) Count Eleven—14 M.R.S. § 6051, Maine equitable estoppel for violations of civil, constitutional and human rights, if there are no adequate remedies at law;

(10) Count Twelve—42 U.S.C. § 1983 claim for refusal of Defendants to accept service of the Complaint without cause; and

(11) Count Thirteen—42 U.S.C. § 1983 claim for failure to establish a written RSU 13 policy on acceptance of service.

III. THE PARTIES' POSITIONS

A. The Defendants' Motion to Dismiss

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In general, the Defendants say that this lawsuit is about a skiing accident that occurred during a school-sponsored ski trip and should be resolved as a tort claim, not a federal civil rights action. Defs.' Mot. at 1.

1. The General Claims against the Entity Defendants

The Defendants first discuss the claims against the so-called "Entity Defendants," namely the School Board and the Policy Committee. Id. at 6-7. They note that the doctrine of respondeat superior has no application in § 1983 cases and that a public entity is responsible under § 1983 only if the challenged actions were "representative of an official policy or custom." Id. at 6. Citing Bardanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989), the Defendants say that to prove a case against a public entity under § 1983, a plaintiff must show that (1) a municipal custom or policy is so widespread and established that the policymakers have knowledge of the practice, and (2) the custom or policy was the "cause of and the moving force behind the deprivation of constitutional rights." Defs.' Mot. at 6. As regards a failure to train allegation under § 1983, a plaintiff must show that there are "underlying identifiable constitutional violations attributable to official municipal policy" and that the public entity's failure to train is related to an "action pursuant to official municipal policy of some nature that caused a constitutional tort." Id. at 6-7 (quoting Kennedy v. Town of Billerica, 617 F.3d 520, 531-32 (1st Cir. 2010) (quoting Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 691 (1978)) (emphasis in original).

With this background, the Entity Defendants argue that the "failure to allege that the Entity Defendants followed a policy or...