Doe v. Bos. Pub. Sch.

Decision Date01 March 2019
Docket NumberCivil Action No. 17-cv-11653-ADB
PartiesJOHN DOE1 and JANE DOE1, on behalf of their minor child B.G., and JOHN DOE2 and JANE DOE2, on behalf of their minor child A.R., Plaintiffs, v. BOSTON PUBLIC SCHOOLS, CITY OF BOSTON, TOMMY CHANG, MARTIN J. WALSH, and AYLA GAVINS, Defendants.
CourtU.S. District Court — District of Massachusetts


Plaintiffs John Doe1 and Jane Doe1, on behalf of their minor child B.G., and John Doe2 and Jane Doe2, on behalf of their minor child A.R., allege that Defendants Boston Public Schools, City of Boston (together with Boston Public Schools, the "Municipal Defendants"), Thomas Chang, Martin Walsh, and Ayla Gavins failed to take sufficient steps to protect B.G. and A.R. from sexual and physical assaults committed by another student, A.J., that occurred at the Mission Hill K-8 School. [See ECF No. 28 (hereinafter "Amended Complaint" or "Am. Compl.")]. Plaintiffs assert violations of 42 U.S.C. § 1983, the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, and Title IX, 20 U.S.C. § 1681 and claims for negligence and loss of consortium. Id. at 6-9. Defendants have separately moved to dismiss. [ECF Nos. 29, 31, 33, 35]. For the reasons set forth below, the motions are GRANTED IN PART and DENIED IN PART.


The following facts are drawn from the Amended Complaint, the well-pleaded allegations of which are taken as true for purposes of evaluating Defendants' motion to dismiss. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014).

Plaintiffs Mr. Doe1 and Ms. Doe1 reside in Boston, Massachusetts with their daughter, B.G. Am. Compl. ¶ 1. Plaintiffs Mr. Doe2 and Ms. Doe2 live in West Roxbury, Massachusetts with their daughter, A.R. Id. ¶ 2. Defendant City of Boston oversees the operation of Defendant Boston Public Schools. Id. ¶ 4. Defendant Martin Walsh is the Mayor of Boston, and during the time period relevant to the Amended Complaint, Defendant Tommy Chang was the Superintendent of the Boston Public Schools and Defendant Ayla Gavins was the principal of the Mission Hill K-8 School. Id. ¶¶ 5-7.

Plaintiffs allege that B.G., A.R., and others were sexually assaulted by A.J., another student, when they attended the Mission Hill K-8 School. Some time before October 2014, A.J. sexually assaulted two fellow students who are not plaintiffs in this action, including by forcibly exposing their genitals and kissing them in their genital areas. Id. ¶ 14. When school staff became aware of these sexual assaults, they took no actions to monitor A.J., expel A.J., or warn other staff about A.J.'s actions. Id. ¶ 15.

During or after October 2014, A.J. sexually assaulted B.G., who was in his class at that time, by digitally penetrating her. Id. ¶ 16, 21. When school staff became aware of A.J.'s assault on B.G., a teacher filed a report with the Massachusetts Department of Children & Families ("DCF") pursuant to mandated reporter obligations under Mass. Gen. Laws ch. 119, § 51A ("51A Report"). Id. ¶ 16. The Municipal Defendants' practice and procedure was to discourage and delay the filing of 51A Reports, and school staff were not trained in the propermanner for filing such Reports. Id. ¶ 19. Consistent with this practice, Gavins discouraged staff from filing the mandatory 51A Reports to DCF about sexual assaults committed by A.J. and other students, and the teacher who filed the 51A Report concerning B.G.'s assault was fired in retaliation. Id. ¶ 18.

For several months following the sexual assault by A.J., B.G. remained in the same classroom as him and lived in fear of being assaulted again. Id. ¶ 21. As a result of her assault, B.G. suffered physical injuries and severe emotional distress. Id. ¶ 29. In addition to B.G., during the 2014-2015 school year, A.J. sexually assaulted four other female students and one other male student at the Mission Hill K-8 School. Id. ¶ 20. These assaults were reported to school staff. Id.

During the 2015-2016 school year, A.J. groped A.R. in her breast and genital areas; he also tried to kiss A.R. and threatened her with physical violence if she refused. Id. ¶ 24. School staff witnessed these assaults and reported them to Gavins. Id. A.J. also made A.R. expose her genitals to him by threatening her with physical violence. Id. This assault was also reported to school staff, including Gavins. Id.

In September 2016, after A.R. was assigned to sit next to A.J. in class, school staff again witnessed A.J. repeatedly assaulting A.R. and reported the incidents to Gavins. Id. ¶ 25. These assaults included A.J. forcibly kissing A.R. and touching her chest. Id. Around the same time, a teacher witnessed A.J. sexually assault another student by touching her genitals and reported that incident to Gavins. Id. In October 2016, while A.R. played on the playground at the Mission Hill K-8 School, A.J. grabbed her genitals. Id. ¶ 26. During the 2015-2016 school year, A.R.'s parents asked school staff for a safety plan for A.R., but Gavins instructed staff not to provide a safety plan or otherwise respond to the requests. Id. ¶ 23. As a result of the assaults by A.J.,A.R. suffered physical injuries and severe emotional distress. Id. ¶ 29.

On June 15, 2017, Plaintiffs filed a complaint in the Massachusetts Superior Court for Suffolk County. [ECF No. 1-1]. On September 1, 2017, Defendants removed the action to this Court. [ECF No. 1]. Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on September 28, 2017. [ECF Nos. 9, 11, 13, 15, 17]. On July 6, 2018, the Court granted Defendants' motions to dismiss without prejudice and allowed Plaintiffs leave to amend. [ECF No. 25]. On August 13, 2018, Plaintiffs filed the Amended Complaint, and on August 24, 2018, Defendants moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF Nos. 28, 29, 31, 33, 35]. Plaintiffs filed oppositions to the Municipal Defendants' and Gavins' motions on September 21, 2018. [ECF Nos. 39, 40].


On a motion to dismiss for failure to state a claim, the Court accepts as true all well-pleaded facts in the complaint and draws all reasonable inferences in the light most favorable to the plaintiff. U.S. ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011). While detailed factual allegations are not required, the complaint must set forth "more than labels and conclusions," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and it must contain "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (internal quotations and citations omitted). The facts alleged, taken together, must "state a claim to relief that is plausible on its face." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 570). "A claim is facially plausible if supported by 'factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Eldredge v. Town ofFalmouth, 662 F.3d 100, 104 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

When assessing the sufficiency of a complaint, the Court first "separate[s] the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Maddox, 732 F.3d at 80 (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Next, the Court "determine[s] whether the remaining factual content allows a 'reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Morales-Cruz, 676 F.3d at 224). "[T]he court may not disregard properly pled factual allegations, 'even if it strikes a savvy judge that actual proof of those facts is improbable.'" Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Twombly, 550 U.S. at 556). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," however, a claim may be dismissed. Iqbal, 556 U.S. at 679.

A. 42 U.S.C. § 1983 Claims (Count I, Against Defendant Gavins, and Count II, Against the Municipal Defendants)

"[T]o state a claim under § 1983, a plaintiff must allege (1) the violation of a right protected by the Constitution or laws of the United States and (2) that the perpetrator of the violation was acting under color of law." Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 621 (1st Cir. 2000). Defendants do not contest that they acted under color of law. Rather, Defendants argue that Plaintiffs have failed to allege the violation of a constitutional right, that Gavins is protected by qualified immunity, and that Plaintiffs have failed to state a Monell claim against the Municipal Defendants. [ECF No. 30 at 4-8; ECF No. 32 at 4-7]. Plaintiffs respond that Defendants can be held liable under a state-created danger theory for the deprivations ofB.G.'s and A.R.'s right to be free from intrusions into their bodily integrity and their right to receive a public education, that Gavins is not entitled to qualified immunity because those constitutional rights are clearly established, and that the Municipal Defendants can be held liable for policies or customs that caused the constitutional violations. [ECF No. 39 at 4-8; ECF No. 40 at 4-8].

1. Violation of Right to Bodily Integrity

The Amended Complaint alleges that Gavins and the Municipal Defendants violated the Constitution by depriving B.G. and A.R. of their liberty interest in bodily integrity. Am. Compl. ¶¶ 35, 43. "In order to establish a substantive due process claim, the plaintiff must first show a deprivation of a protected interest in life, liberty, or property." Rivera v. Rhode Island, 402 F.3d 27, 33-34 (1st Cir. 2005). Here, Plainti...

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