Doucette v. Jacobs

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: LIPEZ, Circuit Judge.
• Citation: Doucette v. Jacobs, 106 F.4th 156 (1st Cir. 2024)
• Docket Number: 22-1915
• Decision Date: 02 July 2024
• Parties: Rachel DOUCETTE, for herself and minor son, B.D.; Michael Doucette, for himself and minor son, B.D., Plaintiffs, Appellants, v. Carol C. JACOBS; Margaret Maher; Cathleen Estep, Ph.d.; Donna F. Straight; Town of Georgetown, Massachusetts; Georgetown School Committee; Georgetown Public Schools, Defendants, Appellees.

106 F.4th 156

Rachel DOUCETTE, for herself and minor son, B.D.; Michael Doucette,for himself and minor son, B.D., Plaintiffs, Appellants, v. Carol C. JACOBS; Margaret Maher; Cathleen Estep, Ph.d.;Donna F. Straight; Town of Georgetown, Massachusetts;Georgetown School Committee;Georgetown Public Schools, Defendants, Appellees.

No. 22-1915

United States Court of Appeals, First Circuit

July 2, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Judith G. Dein, U.S. Magistrate Judge]

Jacqueline B. Doherty, with whom Philip E. Murray, Jr. and Murray & Bertrand, P.C. were on brief, for appellants.

Alexandra M. Gill, with whom Doulas I. Louison and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellees.

Before Kayatta, Lipez, and Gelpí, Circuit Judges

LIPEZ, Circuit Judge.

B.D. is a child with significant developmental disabilities. During the events at issue in this litigation, he was a student at Georgetown Public Schools, where he had an individualized education program ("IEP") as well as a health and safety plan to manage seizures. B.D.'s parents, Rachel and Michael Doucette ("the Doucettes" or "the family"), blame the school district for a series of five severe seizures that B.D. experienced at school in 2012. Accordingly, they sued the school district and assorted personnel (collectively, "GPS" or "the district") asserting, as relevant here, claims under 42 U.S.C. § 1983 for the violation of B.D.'s constitutional rights and under Massachusetts tort law. The district court granted GPS's motion for summary judgment, finding that a reasonable jury could neither conclude that GPS engaged in the conscience-shocking conduct necessary to sustain their constitutional claim nor that GPS was liable under their state-law claims. We affirm.

I.

A. Factual Background

We draw our recitation of the facts from the summary judgment "record -- pleadings, affidavits, depositions, [and] admissions . . . — viewing the evidence in the light most favorable to the party opposing summary judgment." Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st Cir. 2011).

1. B.D.'s GPS Enrollment and IEP

B.D. attended Perley Elementary School ("Perley" or "the school") from July 2009, when he was three, until November 2012, when he was six. B.D. has been diagnosed with numerous developmental disorders, including Isodicentric Chromosome 15q Duplication Syndrome, autistic spectrum disorder, and attention-deficit hyperactivity disorder. He also has seizures, sleep disturbances, anxiety, cognitive impairment, low muscle tone, and balance deficits. He exhibits several "maladaptive behaviors," such as bolting, episodes of aggression, and difficulty communicating, including feelings of pain or discomfort. Most pertinent here, B.D.'s condition is associated with an increased risk of sudden unexpected death due to cardiac or respiratory arrest, which is heightened by his seizure activity.

B.D. attended school with an IEP. See 20 U.S.C. § 1414(d). An IEP "spells out a personalized" and agreed-upon plan by an educational team, including parents and guardians, "to meet all of the . . . educational needs" of a "child[ ] with certain physical or intellectual disabilities" to fulfill the federal statutory guarantee of a "free appropriate public education" ("FAPE"). Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 157-58, 137 S.Ct. 743, 197 L.Ed.2d 46 (2017). "[T]he IEP documents the child's current levels of academic achievement, specifies measurable annual goals for how [the child] can make progress in the general education curriculum, and lists the special education and related services to be provided so that [the child] can advance appropriately toward [those] goals." Id. at 158-59, 137 S.Ct. 743 (last alteration in original) (internal quotation marks omitted) (quoting 20 U.S.C. §§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa)). The precise details of B.D.'s IEP changed over time, but its core requirements always included the provision of a one-on-one aide to work with B.D., a health and safety plan for B.D., speech and occupational therapy, and an extended school year ("ESY") program. Every iteration of the IEP also emphasized the importance of maintaining "consistency" for B.D.

The Doucettes and GPS had a strained relationship throughout the three years that B.D. attended GPS schools. Within months of B.D. starting at Perley, the family began voicing concerns to administrators and teachers about their adherence to B.D.'s IEP and his safety at school, particularly after learning that B.D. was sometimes left unsupervised. This lack of supervision especially concerned the Doucettes because of B.D.'s proclivity to bolt from class, which on one occasion resulted in B.D. falling from a beanbag chair and hitting his head. Eventually, the Doucettes pulled B.D. out of school from May until September of 2010, though his IEP included ESY services.

That summer, during B.D.'s removal from school, the Doucettes requested a hearing before the Massachusetts Bureau of Special Education Appeals ("BSEA"), seeking amendments to his IEP, an out-of-district placement for B.D., and compensatory services for the time he spent out of school. After a hearing in which both parties were represented by counsel, a hearing officer determined that B.D.'s IEP was inadequate as written and required several amendments to incorporate Applied Behavioral Analysis ("ABA") principles of instruction, including regular consultation with an ABA specialist.¹ However, the hearing officer disagreed with the Doucettes that an out-of-district placement was warranted to provide B.D. with a FAPE, finding insufficient support for the argument that Perley was an unsafe environment. The hearing officer also rejected the Doucettes' request for compensatory services, noting that their lack of cooperation with GPS, and particularly removing B.D. from school, had prevented his IEP from achieving its intended effect. Following the BSEA's decision, B.D. returned to Perley in the fall of 2010 with a new IEP in place.²

2. B.D.'s Seizures

A primary concern of the Doucettes related to GPS's handling of B.D.'s seizures. Because of the risks posed to B.D.'s health, GPS and the Doucettes developed a "seizure action plan" that identified the triggers of B.D.'s seizures and also specified what to do if a seizure occurred. Initially, the seizure action plan listed "sleep deprivation" and "fever" as triggers. As we will discuss below, it was updated to include "stress" as well in late July 2012.

In the Doucettes' view, GPS personnel did not always handle B.D.'s seizures appropriately. In November 2010, for instance, B.D. suffered a possible seizure at school, prompting the Doucettes to raise concerns about two GPS staff members. More specifically, after the incident, B.D.'s primary classroom teacher asked the Doucettes for clarification about what to do in the event of a seizure, leading the Doucettes to worry that the teacher, and potentially others, had not been trained on B.D.'s seizure action plan.³ The parents also asked for a nurse to be formally disciplined for contacting B.D.'s neurologist about the event without the parents' consent.⁴

B.D.'s seizure activity increased in the summer of 2011 and the 2011-12 school year. Among other actions, the Doucettes worked with B.D.'s physicians to get the seizures under control, including a period of seizure monitoring at Massachusetts General Hospital ("MGH") in May 2012 and modifications to his medication regime. They also coordinated with GPS to ensure B.D.'s safety at school. In addition to his seizure action plan, the school implemented a seizure tracking form and provided a seizure training protocol for school personnel.

The Doucettes, however, remained unsatisfied with the school's handling of B.D.'s seizures during the 2011-12 school year. At times, the Doucettes felt the district was inept in evaluating the severity and appropriate response to B.D.'s seizure activity. For example, B.D.'s seizure action plan did not call for him to be removed from school in the event of "non-emergent, absence seizure/staring spells" or "atypical action seizures" lasting fewer than three minutes.⁵ Nonetheless, on three occasions, the school sent B.D. home due to seizures of this nature, prompting the Doucettes to produce a note from B.D.'s physician instructing GPS to keep B.D. in school absent "signs of acute illness." At other times, however, the family felt the district failed to take the risks to B.D.'s health seriously enough -- such as when no nurse was assigned to accompany and monitor B.D. during an off-campus field trip, contrary to B.D.'s IEP and health and safety plan. While B.D. did not suffer any injury during this trip, the Doucettes expressed their frustration with GPS over this "violat[ion] [of] our trust," questioning the school district's commitment to safeguarding B.D.'s wellbeing.⁶

The Doucettes also took issue with an increase to B.D.'s "inclusion time" -- the amount of time B.D. spent integrated with non-disabled peers -- during the 2011-12 school year. While B.D.'s inclusion time had previously been in the range of 0-39 percent, it increased to up to 80 percent that year. In response, the Doucettes provided the school with a report from B.D.'s neurologist connecting this change with an increase in B.D.'s anxiety and aggression and recommending a reduction in his inclusion time.

Another point of contention was B.D.'s service dog, McCloud. In the fall of 2011, McCloud began assisting B.D. with his balance and anxiety, with McCloud alerting when B.D. was experiencing a seizure. When the Doucettes sought to add McCloud to B.D.'s IEP, GPS initially expressed openness to the idea. However, GPS also insisted on first conducting a behavioral assessment of McCloud and pushed back on the Doucettes' request that the school handle and care for McCloud during school hours. Eventually, in July 2012, GPS permitted McCloud to accompany B.D. to school, with...