Doucette v. Jacobs

• Decision Date: 17 January 2018
• Docket Number: CIVIL ACTION NO. 15–13193–JGD
• Citation: 288 F.Supp.3d 459
• Parties: Rachel DOUCETTE, et al., Plaintiffs, v. Carol JACOBS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

288 F.Supp.3d 459

Rachel DOUCETTE, et al., Plaintiffs,

v.Carol JACOBS, et al., Defendants.

CIVIL ACTION NO. 15–13193–JGD

United States District Court, D. Massachusetts.

Signed January 17, 2018

Carol A. Kelly, Philip E. Murray, Jr.Kimberly D. GoodmanCooperstein Murray, Kelly & Bertrand, P.C. Woburn, MA, for Plaintiffs.

Alexandra R. Hassell, Regina M. Ryan, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER ONDEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS

Judith Gail Dein, United States Magistrate Judge

I. INTRODUCTION

The plaintiffs, Rachel and Michael Doucette, are the parents of a severely disabled child, B.D., who attended the Georgetown Public Schools ("GPS") from age three until he was able to obtain an out-of-district placement at age six. B.D. attended GPS under an Individualized Education Plan ("IEP") pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA") and the Massachusetts Special Education statute, Mass. Gen. Laws ch. 71B. The Doucettes have brought this action individually and on behalf of their son, alleging that B.D. suffered serious physical and emotional harm, including five stress-induced, life-threatening, tonic-clonic seizures, due to the defendants' failure to provide him with appropriate services in school, in violation of his federal and state law rights. The seizures allegedly stopped once B.D. was removed from the Georgetown schools, and the plaintiffs are seeking monetary damages only against the entities and individuals involved in providing B.D. services while he was at GPS.¹

In addition to asserting state law claims for intentional infliction of emotional distress (Count I), negligence (Count II), loss of consortium (Count III), and negligent infliction of emotional distress (Count VI),² in their Amended Complaint (Docket Nos. 20–2 at 6–15, and 20–3) ("Am. Compl."), the plaintiffs have alleged a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), against GPS, the School Committee, and the Town (Count IV), and a violation of 42 U.S.C. § 1983 against all defendants (Count V). The Rehabilitation Act claim is based on the plaintiffs' contention that "[t]he defendants' refusal to permit B.D. access to his service dog in his educational setting was illegal disability-based discrimination that violated Section 504." (Am. Compl. ¶ 104). In support of their § 1983 claim, the plaintiffs challenge, inter alia, the defendants' failure to "evaluate[ ] the extent of B.D.'s visual impairment to determine the implication on his fine motor skills, education and related services" as well as the defendants' initial refusal to approve an in-district or out-of-district placement despite the inadequacies of the services available at GPS. (See id. ¶¶ 111–15). According to the plaintiffs, "[a]s a result of the defendants' deliberate indifference and severe, pervasive disregard for his safety and well-being, B.D. was deprived of a free and appropriate education and was caused to suffer great physical and emotional harm." (Id. ¶ 116).

This matter is presently before the court on "Defendants' Motion for Judgment on the Pleadings" (Docket No. 48) and "Defendants' Supplemental Motion for Judgment on the Pleadings" (Docket No. 61),³ by which the defendants are seeking the dismissal of all claims asserted against them on the grounds (1) that the plaintiffs were required and failed to exhaust their administrative remedies under the IDEA before they could bring any of the claims asserted, (2) that the plaintiffs are not entitled to damages under the IDEA, (3) that the state tort claims against GPS, the School Committee and the Town are barred by the Massachusetts Tort Claims Act ("MTCA"), Mass. Gen. Laws ch. 258, § 2, and (4) that the plaintiffs have failed to state a claim against the individual defendants for intentional infliction of emotional distress.

After consideration of the parties' written submissions, including their supplemental briefing, and the parties' oral arguments, and for all of the reasons described herein, this court finds that the plaintiffs' federal law claims must be dismissed for failure to exhaust administrative remedies under the IDEA. This court declines to exercise jurisdiction over the remaining state claims. See Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) ("the Supreme Court has instructed that ‘in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.’ ") (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 619 n.7, 98 L.Ed.2d 720 (1988) ). Therefore, the defendants' motions for judgment on the pleadings are ALLOWED, and the remaining state law claims will be remanded to state court.

II. STATEMENT OF FACTS

As the defendants have filed an answer to the complaint, their motion before the court is properly one for judgment on the pleadings, brought pursuant to Fed. R. Civ. P. 12(c). See Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006). "A motion under Fed. R. Civ. P. 12(c) for judgment on the pleadings is treated like a Rule 12(b)(6) motion to dismiss." Diaz–Nieves v. United States, 858 F.3d 678, 689 (1st Cir. 2017) (citing Curran v. Cousins, 509 F.3d 36, 43–44 (1st Cir. 2007) ). "Accordingly, ‘the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom.’ " Id. (quoting Pérez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (1st Cir. 2008) ). Dismissal on the pleadings is appropriate "if it appears that the nonmovant could prove no set of facts that would entitle him or her to relief." Id. (citing Mass. Nurses Ass'n v. N. Adams Reg'l Hosp., 467 F.3d 27, 31 (1st Cir. 2006) ) (additional citation omitted).

Applying these principles, the relevant facts are as follows.

B.D. and His IEP

B.D. has Isodicentric Chromosome 15q Duplication Syndrome, a rare de novo genetic disorder. (See Am. Compl. ¶ 15). As described in the Amended Complaint:

As a consequence of this syndrome, B.D. has a number of substantial educational limitations, including global developmental delay, with a diagnosis of Pervasive Developmental Disability, Not Otherwise Specified (PDD, NOS), autistic spectrum disorder, seizure disorder, anxiety disorder, sleep disorder and gastrointestinal issues. B.D. also has been diagnosed with attention-deficit hyperactivity disorder (ADHD), a history of choking, low muscle tone and balance defects, together with a high threshold for pain, limited ability to report injury or discomfort, sensory process disorder, visual problems, decreased personal safety awareness, maladaptive behaviors such as bolting and aggression, cognitive impairment, and communication deficits.

(Id. ). Furthermore, of significance to the issues before this court, "[c]hildren with Chromosome 15q Duplication Syndrome have an increased risk of sudden unexpected death (SUD)" caused by respiratory or cardiac arrest. (Id. ¶ 16). The plaintiffs contend that this increased risk "is typically correlated with seizure activity[,]" as a result of which "the prevention of seizures in such children is of critical importance." (Id. ).

In July 2009, when he was almost three years old, B.D. began attending Perley Elementary School ("Perley") in Georgetown. (Id. ¶ 19). At Perley, B.D. received special education and related services provided by GPS under an IEP developed pursuant to the IDEA and the Massachusetts Special Education statute, Mass. Gen. Laws ch. 71B. (Id. ). "Pursuant to his IEP, B.D. received individual instruction, occupational therapy, physical therapy, speech-language services both within and outside the classroom, home training by an aide, and ... a 1:1 aide trained in CPR and Heimlich maneuvers because of a risk of choking and a risk of bolting." (Id. ). Also pursuant to his IEP, B.D. attended school both during the regular school year and over the summer as part of an "Extended School Year" ("ESY") program. (Id. ).

B.D.'s parents were not satisfied with the services that B.D. was receiving at GPS. For example, but without limitation, as early as October 2009, three months after B.D. began attending Perley, B.D.'s parents expressed concerns to GPS, its administrators, educators and staff, based on Mrs. Doucette's personal observations, "that B.D. was not receiving the educational programming and services required under his IEP and these failures were placing his safety and well-being at risk." (Id. ¶ 20). When B.D. was diagnosed with an anxiety disorder and a seizure disorder in December 2009, B.D.'s parents requested that his IEP be amended to include a Seizure Plan. (Id. ¶¶ 22–23). While the Seizure Plan was eventually added, according to B.D.'s parents, the appropriate personnel were never properly trained, and the Plan was not appropriately followed. (Id. ¶¶ 31–34).

From January to early March 2010, B.D.'s parents had B.D. evaluated by a number of medical specialists who recommended that an educational program that utilized, to a substantial degree, applied behavior analysis (ABA) methodology, including structured sensory breaks and discrete trials, be added to B.D.'s IEP. (Id. ¶ 25). On March 29, 2010, B.D.'s parents complained at an IEP team meeting at which the Superintendent and the Principal were in attendance, that B.D.'s placement at GPS was inappropriate because B.D. was not making educational progress and his developmental delays were increasing. (Id. ¶ 26). They also argued that B.D. should be immediately placed in an in-district or out-of-district placement that incorporated ABA methodologies. (Id. ). Members of B.D.'s IEP team "disagreed that B.D. was not making educational progress, that he needed structured sensory breaks, or that...