Demers ex rel. Demers v. Leominster School Dept.

• Decision Date: 16 May 2003
• Docket Number: No. CIV.A.00-40082-CBS.,CIV.A.00-40082-CBS.
• Citation: 263 F.Supp.2d 195
• Parties: Michael DEMERS, A Minor by and through his parent and next friend, John DEMERS, Plaintiff, v. LEOMINSTER SCHOOL DEPARMENT, Dr. Joseph Rappa, in his capacity as Superintendent of Schools, Judith P. Mulkern, in her capacity as Principal of Northwest School, and Susan Hitchcock, in her capacity as Pupil Personnel Director, Defendants.
• Court: U.S. District Court — District of Massachusetts

263 F.Supp.2d 195

Michael DEMERS, A Minor by and through his parent and next friend, John DEMERS, Plaintiff, v. LEOMINSTER SCHOOL DEPARMENT, Dr. Joseph Rappa, in his capacity as Superintendent of Schools, Judith P. Mulkern, in her capacity as Principal of Northwest School, and Susan Hitchcock, in her capacity as Pupil Personnel Director, Defendants.

No. CIV.A.00-40082-CBS.

United States District Court, D. Massachusetts.

May 16, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John A. Bosk, Jr., Attorney John Bosk, Fitchburg, MA, for Michael Demers, John Demers, Plaintiffs.

John J. Davis, William B. Scarpelli, Pierce, Davis, Fahey & Perritano, LLP, Boston, MA, for Joseph Rappa, Dr., Judith P. Judith P. Mulkern, Principal of Northwest School, Susan Hitchcock, Pupil Personnel Director, Defendants.

MEMORANDUM OF LAW AND ORDER FOR JUDGMENT

SWARTWOOD, United States Magistrate Judge.

Nature of the Proceeding

On April 13, 2001, this case was referred to me by consent of the parties for all further proceedings in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. This Order addresses the Defendants' Leominster School Department, Dr. Joseph Rappa, Judith P. Mulkern, and Susan Hitchcock, Motion for Summary Judgment (Docket No. 50) as to all counts.

Nature of the Case

Plaintiff Michael Demers ("Michael"), a minor, by his father, John Demers (collectively, "the Demers"), filed a fifteen count complaint against the Defendants, Leominster School Department ("the School"), Dr. Joseph Rappa ("Dr. Rappa"), in his capacity as Superintendent of Schools for the City of Leominster, Judith Mulkern ("Ms.Mulkern"), in her capacity as Principal, and Susan Hitchcock ("Ms.Hitchcock"), in her capacity as Pupil Personnel Director of the Northwest School in Leominster, Massachusetts. Michael alleges civil rights claims under U.S.C. § 1983 against all Defendants for violation of his rights to free speech, privacy, procedural and substantive due process, and equal protection pursuant to the First and Fourteenth Amendments to the United States Constitution. Michael also asserts claims for the same rights under the Massachusetts Declaration of Rights and the Massachusetts General Laws.

Facts

1. In the Spring of 2000, Plaintiff, Michael Demers, was fifteen years old and in the eighth grade at the Northwest School in Leominster, Massachusetts. Verified Complaint and Request for Injunctive Relief (Docket No. 1) ("Complaint"), ¶ 4 He was classified as a special needs student pursuant to M.G.L. c. 71B. Id.

2. Michael has a history that includes disruptive classroom behavior, substance abuse problems, incidents involving assaultive behavior to students and school staff, psychiatric hospitalizations, and court probation. Appendix to Defendants' Memorandum in Support of Summary Judgment (Docket No. 50) ("Defs.Mem."), Exhibit A ("Ex.A"), Affidavit of Susan Hitchcock ("Hitchcock Aff"), ¶¶ 14, 5, 10 and 12.

3. On April 5, 2000, Michael was talking during his English class. Complaint, ¶ 10. Michael's English teacher, Mrs. Roselli, asked him to stop. Id When Michael continued to talk, Mrs. Roselli asked him to leave the room. Id.

4. Michael went next door to the classroom of a substitute math teacher, Mr. Gendron. Complaint, ¶ 11. Michael informed Mr. Gendron that he had been ordered out of his English class. Id. Mr. Gendron gave Michael a piece of paper and asked him to draw a picture showing how he felt about being kicked out of class. Id.

5. On one side of the paper, Michael made a drawing of the school surrounded by explosives, with students hanging out the windows crying for help. Complaint, Exhibit B ("Ex.B"). He labeled the type of explosives (C-4) and in one instance the amount of explosives (7 lbs.). Id. On the other side of the paper, Michael drew a picture of Dr. Joseph Rappa, the Superintendent of Schools, with a gun pointed at his head and explosives at his feet. Id.

6. Michael gave the drawing to Mr. Gendron, who shared the pictures with the principal, Judith Mulkern. Nothing more was said about the drawings at that time. Complaint, ¶ 13.

7. The following day, Michael wrote the phrases "I want to die" and "I hate life" repeatedly down a sheet of paper and threw it away. This paper was also given to Mrs. Mulkern. Def's. Mem., Ex. A, Hitchcock Aff., ¶ 16; Exhibits to Susan Hitchcock Affidavit (Docket No. 12) ("Hitchcock Ex."), Ex. 12, Michael Demers Handwritten Note ("Demers note").

8. On April 7, 2000, Michael was called to meet with Mrs. Mulkern in her office and questioned about the drawing and the note. Def.'s Mem., Exhibit D ("Ex.D"), Deposition of Judith Mulkern Gordon ("Mulkern Dep."), p. 53. Michael's father appeared 20 minutes after Michael appeared in the office. Plaintiffs Opposition to Defendants' Motion for Summary Judgment with Incorporated Memorandum of Law (Docket No. 63) ("Pl.'s. Opp."), Statement of Material Undisputed Facts, ("Pl's.Facts"), ¶ 6.

9. After the meeting, Mrs. Mulkern suspended Michael pending the outcome of a TEAM meeting to be held on Tuesday, April 11, 2000. Complaint, ¶¶ 17-18.

10. On April 11, 2000, a meeting was held with Michael, Mr. Demers, Mrs. Mulkern, Mrs. Hitchcock, Cynthia O'Brien, the School Psychologist, and John Hathaway, the Assistant Vice Principal. Id. at ¶ 19. The school officials agreed to allow Michael to remain in school on the condition that he: 1) receive a psychiatric evaluation; 2)behave properly; and 3) do his school work. Pl.'s Opp., Exhibit B ("Ex.B "), Deposition of Michael Demers ("Demers' Dep."), pp. 80, 83. A psychiatric evaluation had already been scheduled by Michael's parents for April 25, 2000. Def's. Mem., Ex. A, Hitchcock Aff., ¶ 17.

11. Michael attended school for the remainder of the week of April 11-14, 2000. School was not in session during the week of April 17-22, 2000 due to vacation. Def.'s Mem., Statement of Material Undisputed Facts, ¶ 13.

12. On April 25, Michael refused to attend the private psychiatric evaluation. Pl.'s Opp., Ex. B, Demers' Dep., p. 85.

13. After notifying Mr. Demers that his son could not remain in school because of his refusal to undergo the psychiatric evaluation, Mrs. Mulkern arranged a TEAM meeting for May 1, 2000, which was attended by Michael and his father. Def.'s Mem., Ex. D, Affidavit of Judith Mulkern ("Mulkern Aff"), ¶¶ 10-11.

14. At the meeting, it was decided that Michael would be suspended for the remainder of the academic year. Def.'s Mem., Hitchcock Aff, ¶ 21; Pl.'s Mem., Ex. E., Disciplinary Record of Michael Demers. It was also decided that Michael would be placed in a 45-day interim alternative educational setting in an out-of-district, private day school. Def.'s Mem., Ex. A, Hitchcock Aff, ¶ 21.

15. On May 1, 2000, Mrs. Mulkern sent a certified letter to Michael and his parents, notifying them of the suspension and that alternative educational services were being provided. Pl.'s Mem., Ex. G, Complaint, Ex. 3; Def.'s Mem., Ex. C, Mulkern Aff, ¶ 11.

16. On May 6, 2000, Michael's lawyer set a letter to Dr. Rappa, requesting an appeal hearing of Michael's suspension. Pl.'s Mem., Ex. J.

17. School officials declined to provide an appeal. Pl.'s Mem., Ex. G, Complaint, ¶ 23.

18. On June 2, 2000, during a pre-hearing conference call with a hearing officer at the Massachusetts Bureau of Special Education Appeals ("BSEA"), the school agreed to allow Michael to return to school on Monday, June 5, 2000. Pl.'s Mem, Statement of Undisputed Material Facts, ¶ 16; Def.'s Mem., Statement of Undisputed Materil Facts, ¶ 24.

Summary Judgment

Summary judgment is appropriate when the record indicates that "there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. "`A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party. A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law.'" Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal citations omitted) (quoting Fed. R.Civ.P. 56(c) and Sanchez v. Alvarado, 101 F.3d 223, 226 (1st Cir.1996)). "To succeed [in a motion for summary judgment], the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

"Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who `may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial'" Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The record evidence must be construed "in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party." Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 5 (1st Cir.2000).

Discussion

I. Free Speech Pursuant to the First Amendment of the United States Constitution and 42 U.S.C. § 1983

Michael argues that his drawing is protected by the First Amendment and that he was unconstitutionally disciplined for its content. The Defendants contend that Michael's drawing was considered a threat to the safety of the students at Northwest School and not entitled to Constitutional protection. Additionally, Defendants argue that Michael was not disciplined solely because of the drawing, but was excluded from school based on several factors including his school disciplinary record and prior acts of violence in school, which indicated that he may be a danger to himself and the safe operation of the school.

The first step in establishing a First...