Fortuna v. Town of Winslow
| Docket Number | 1:21-cv-00248-JAW |
| Decision Date | 13 June 2022 |
| Parties | SCOTT FORTUNA Plaintiff, v. TOWN OF WINSLOW, et al. Defendants. |
| Court | U.S. District Court — District of Maine |
ORDER ON MOTION TO DISMISS
A plaintiff parent of a junior high student brings a substantive due process challenge seeking declaratory injunctive, and other relief, including compensatory and punitive damages, from a school district COVID-19 prevention measure requiring all students to wear masks while at school. The school defendants enacted the mask policy before the start of the 2021-2022 school year and recently amended it to make masks optional. The school defendants seek to dismiss the plaintiff's claim on the ground that the plaintiff failed to implicate a fundamental right or state a cognizable “conscious-shocking” due process violation, and because the mask policy, enacted pursuant to public health guidance, was rationally related to the legitimate government purpose of mitigating student risk and minimizing learning disruptions during an unprecedented pandemic. The Court concludes that the plaintiff failed to allege facts sufficient to survive dismissal.
On August 27, 2021, Scott Fortuna filed a three count complaint against the town of Winslow, Maine, Winslow Public Schools Superintendent Peter Thiboutot, and the Winslow School Committee (the School Defendants). Compl. (ECF No. 1). On September 7, 2021, the School Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. to Dismiss for Failure to State a Claim of Defs. Winslow Public Schools, Winslow School Board, and Peter Thiboutot (ECF No. 10). On September 20, 2021, Mr. Fortuna filed an unopposed motion to dismiss without prejudice the claims against the town of Winslow, which the Court granted. Pl.'s Mot. for Leave to Dismiss Town of Winslow Without Prejudice (ECF No. 14); Order (ECF No. 15).
On October 28, 2021, Mr. Fortuna filed an amended complaint in which he abandoned Counts II and III. First Am. Compl. (ECF No. 18) (First Am. Compl.). On November 1, 2021, the School Defendants withdrew their earlier motion and filed a new motion to dismiss Mr. Fortuna's first amended complaint. Defs.' Withdrawal of Mot. to Dismiss Compl. for Failure to State a Claim (ECF No. 20); Defs.' Mot. to Dismiss First Am. Compl. for Failure to State a Claim (ECF No. 21) (Defs.' Mot.). On November 15, 2021, Mr. Fortuna filed his response in opposition to the School Defendants' motion to dismiss. Pl.'s Opp'n to Defs.' Mot. to Dismiss (ECF No. 22) (Pl.'s Opp'n). The School Defendants replied on November 22, 2021. Defs.' Reply in Supp. of Mot. to Dismiss (ECF No. 23) (Defs.' Reply).
On February 24, 2022, Mr. Fortuna filed a motion to amend, attaching his proposed second amended complaint. Mot. for Leave to File Second Am. Compl. (ECF No. 25) (Pl.'s Mot. to Amend); see id., Attach. 1, Pl.'s Second Am. Compl. On February 25, 2022, the School Defendants responded in opposition to Mr. Fortuna's request to amend. Defs.' Opp'n to Pl.'s Mot. for Leave to File Second Am. Compl. (ECF No. 26) (Defs.' Opp'n to Mot. to Amend). Mr. Fortuna filed his reply on March 3, 2022. Pl.'s Reply to Defs.' Opp'n to Mot. to File Second Am. Compl. (ECF No. 27) (Pl.'s Reply in Supp. of Mot. to Amend).
On March 10, 2022, the Court ordered the parties to update the record on whether the School Defendants had recently lifted the mask mandate by making mask wearing optional in Winslow Schools. Order (ECF No. 29). On March 11, 2022, the School Defendants responded that:
On Monday, March 7, 2022, the Winslow School Board voted to make masks optional in the Winslow Public Schools based on updated guidance from the Maine Department of Education and public health authorities.
The new optional mask policy took effect on Wednesday, March 9, 2022. Resp. to Ct.'s Order at 1 (ECF No. 30). Counsel for the parties “agreed that this change in the Winslow Public Schools mask policy does not render this case, or the pending motions, moot because the Winslow Public Schools could reimpose a mandatory masking policy if guidance from public health authorities changed again.”[1] Id.
On March 22, 2022, the Court granted Mr. Fortuna's request to amend his complaint to add additional factual allegations and a specific assertion that even if the school district modifies its recommendations on universal masking, there is a likelihood it will reimpose the masking mandate in the future. Order on Mot. to Amend at 8-9 (ECF No. 31). On March 24, 2022, the parties advised the Court that they wished to maintain their briefing on the motion to dismiss as currently filed. Joint Resp. to Ct.'s Order (ECF No. 32). On April 19, 2022, Mr. Fortuna filed his Second Amended Complaint pursuant to the Court's order granting him leave to amend. Pl.'s Second Am. Compl. (Second Am. Compl.) (ECF No. 36). The School Defendants responded by renewing the arguments made in their motion to dismiss and reply to Mr. Fortuna's motion to amend. Renewal of Mot. to Dismiss (ECF No. 38).
The Court must first consider what it may consider. The standards for resolving a motion to dismiss are familiar. Consistent with Federal Rule of Civil Procedure 12(b)(6), when deciding a motion to dismiss, a court “accept[s] all well-pleaded facts in the complaint as true.” Gilk v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011) (quoting Sanchez v. Pereira-Castillo, 590 F.3d 31, 36 (1st Cir. 2009)). A court also “construe[s] all reasonable inferences in favor of the plaintiff ....” Sanchez, 590 F.3d at 41 .
Under the general rule, a court must decide a motion to dismiss “solely on the face of the complaint, without any consideration of any other documents.” Cebollero-Bertran v. P.R. Aqueduct and Sewer Auth., 4 F.4th 63, 69 n.4 (1st Cir. 2021); Doe v. Pawtucket Sch. Dep't, 969 F.3d 1, 8 (1st Cir. 2020). Two exceptions to the general rule are material here. The first is that a court may consider “documents attached to the complaint or incorporated by reference therein.” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). This exception is sufficiently broad to capture documents “integral to or explicitly relied upon in the complaint, even though not attached to the complaint.” Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000).
A second exception permits consideration of “matters of public record.” Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013); Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). The First Circuit has observed that the phrase “official public records” appears “limited, or nearly so, to documents or facts subject to judicial notice under Federal Rule of Evidence 201.” Freeman, 714 F.3d at 36. With this background, the Court turns to the positions of the parties.
The School Defendants urge the Court to adopt the approach of the District Court for the Central District of California to “take judicial notice of facts from the websites of the Centers for Disease Control (CDC), the Maine CDC and the MDOE [Maine Department of Education].” Defs.' Mot. at 4-5. In Calm Ventures LLC v. Newsom, 548 F.Supp.3d 966 (C.D. Cal. 2021), California's governor and attorney general, seeking dismissal of a challenge to statewide COVID-19 restrictions, urged the district court to take judicial notice of government sources of information about the COVID-19 pandemic, including the CDC's “COVID Data Tracker and its publicly reported data, ” California's own COVID-19 statistics, and a CDC Science Brief. Id. at 974. Over the plaintiff's objection that incorporating this information would “convert a motion to dismiss into a motion for summary judgment, ” the district court granted the government defendants' request for judicial notice of documents in the public record, pursuant to Federal Rule of Evidence 201. Id.
In Gent v. CUNA Mutual Insurance Society, 611 F.3d 79 (1st Cir. 2010), the First Circuit incorporated information from the CDC website in its affirmance on a motion to dismiss, explaining that “we take judicial notice of the relevant facts provided on the [CDC] website, which are ‘not subject to reasonable dispute.'” Id. at 84 n.5 ().
Recently, courts in this District have incorporated information from the Maine CDC's daily case counts and Maine's COVID-19 Vaccination Dashboard in orders related to COVID-19 public health restrictions. See Cavalry Chapel of Bangor v. Mills, 542 F.Supp.3d 24, 27-28 & n.4 (D. Me. 2021) (on a motion to dismiss, taking ) (citing Gent, 611 F.3d at 84 n.5); see also Doe v. Mills, No. 1:21-cv-00242-JDL, 2021 U.S. Dist. LEXIS 197251, at *3 (D. Me. Oct. 13, 2021) aff'd, 16 F.4th 20 (1st Cir. 2021) () (citing In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003); Loucka v. Lincoln Nat'l Life Ins. Co., 334 F.Supp.3d 1, 8-9 (D.D.C. 2018) ()).
Throughout the COVID-19 pandemic, “[c]...
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