Hootstein v. Amherst-Pelham Reg'l Sch. Comm.

• Decision Date: 11 February 2019
• Docket Number: Civil Action No. 17-30146-MGM
• Citation: 361 F.Supp.3d 94
• Parties: Michael HOOTSTEIN, Plaintiff, v. AMHERST-PELHAM REGIONAL SCHOOL COMMITTEE, Defendant.
• Court: U.S. District Court — District of Massachusetts

361 F.Supp.3d 94

Michael HOOTSTEIN, Plaintiff,

v.AMHERST-PELHAM REGIONAL SCHOOL COMMITTEE, Defendant.

Civil Action No. 17-30146-MGM

United States District Court, D. Massachusetts.

Filed February 11, 2019

Michael Hootstein, Shutesbury, MA, pro se.

David K. McCay, Catherine G. Curley, Eva M. Zelnick, Mirick, O'Connell, DeMallie & Louggee, LLP, Westborough, MA, for Defendant.

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS

(Dkt. No. 12)

MARK G. MASTROIANNI, UNITED STATES DISTRICT JUDGE

Plaintiff Michael Hootstein is a custodial grandparent of a student at Amherst Regional High School ("ARHS") and of a young child who will attend Amherst schools. Plaintiff is proceeding pro se and brought claims against Defendant Amherst-Pelham Regional School Committee ("Defendant") related to lead-contaminated water at Defendant's schools, including ARHS. The complaint alleges two causes of action: first, a claim under 42 U.S.C. § 1983 that Defendant's response to lead-contaminated drinking water violated Plaintiff's, his grandson's, and others' Fourteenth Amendment due process rights (Count I); and second, the same conduct violated Article 97 of the Amendments to the Massachusetts Constitution (Count II). Plaintiff seeks various forms of injunctive and declaratory relief, but he does not seek monetary damages. Defendant moved to dismiss both counts, arguing the § 1983 claim is preempted by the Safe Drinking Water Act ("SDWA"), Defendant is not subject to the SDWA, and Art. 97 does not confer a private right of action. The court heard argument on the motion on January 17, 2019.¹ As explained below, Defendant's motion to dismiss will be granted in part and denied in part.

I. BACKGROUND

As the custodian of his two grandsons (one a student at ARHS who has a learning disability, the other a 5-year-old who will attend Amherst schools), Plaintiff is concerned about lead contamination in the water at Amherst schools.² (Compl. (Dkt. No. 1) at ¶¶ 1, 12.) " ‘There is no safe level of exposure to lead and even exposure to relatively low levels can cause severe irreversible health effects.’ " (Id. at ¶ 21 (quoting June 2016 report from Massachusetts Department of Public Health).) Legislation pending in Massachusetts when Plaintiff filed his complaint, if passed, would have required immediate shut-off of school drinking or cooking water containing more than 1 part per billion ("ppb") of lead. (Id. at ¶ 1).

Water at Amherst schools is lead-contaminated, and, Plaintiff alleges, five Amherst schools have 90th percentile lead levels between 35 ppb and 93 ppb, which is between 1.4 and 3.7 times more contaminated than the water in Flint, Michigan.³

(Id. at ¶¶ 15-19.) A local newspaper reported "many" water samples that remained in pipes overnight "exceeded the EPA's 15 parts per billion action level for lead," but "almost all" of the samples "had negative tests for lead when water ran for 30 seconds." (Id. at ¶ 28.) The article quoted the Amherst Health Director as saying, " ‘[T]he water consumed at schools is likely to be just a minor portion of any lead intake.’ " (Id. ) Subsequent news coverage claimed that, of schools tested in western Massachusetts, "the Amherst-Pelham Regional School District had the highest number of taps with elevated levels of lead." (Id. at ¶ 29.) The same Health Director was quoted as saying, " ‘It's not that there's lead in the water, the water that enters the schools is safe. What happens is as it goes through these fixtures; [sic] it's picking up some lead.’ " (Id. ) Thus, the town itself acknowledged water became contaminated when passing through fixtures in schools.

On October 11, 2016, the Acting Superintendent informed parents that school drinking water was safe "after using the flushing protocols." (Id. at ¶ 23.) Plaintiff subsequently sent four written complaints to Defendant that the flushing protocols were ineffective, lead contamination in school drinking water had not been reduced to safe levels, and Amherst schools had been providing children contaminated drinking water and food prepared using contaminated water. (Id. at ¶¶ 23-26.) He contended that "increased rates of Amherst children with learning disabilities in our schools suggest the possibility that lead ingested by our children at school caused or contributed to our children's learning disabilities." (Id. at ¶ 25.)

Plaintiff acknowledges Defendant took corrective action to remediate lead in school drinking water but claims that after remediation, Defendant failed to test the water to ensure it was safe to drink. (Id. at ¶ 27.) He also alleges Defendant falsely claimed water was safe to drink when it was not, which exposed people to lead-contaminated water and possible lead poisoning

. (Id. at ¶¶ 4, 30) He requested Defendant provide Amherst schools with bottled water (id. at ¶ 25), which Defendant has allegedly not done.

Plaintiff alleges Defendant created a "foreseeable risk" that he, his grandson, and others would be "lead-poisoned at an Amherst public school from drinking lead-contaminated water deceptively certified as safe by defendant." (Id. at ¶ 4.) Defendant's alleged misconduct began in September 2016 when it learned that Plaintiff and others "were likely drinking/ingesting lead-contaminated school drinking water/food" and chose not to warn them. (Id. at ¶ 5.) Defendant allegedly "provid[ed] toxic, lead-contaminated school drinking water unfit for human use and consumption to schoolchildren and adults (like the plaintiff)" knowing "lead-poisoning

is likely to cause foreseeable irreparable physical, emotional and financial harm." (Id. at ¶ 32; see also id. at ¶ 36 (Defendant "continues to expose all their [sic] students and their parents (the plaintiff in the current matter) to toxic lead-contaminated school drinking water").) In addition, Defendant "has continued to deny irrefutable scientific evidence proving Amherst school drinking water dangerously exposes students (like plaintiff's grandson), parents (like the plaintiff), teachers and school staff to dire injury and imminent impairment known to be caused by even low levels of lead toxicity that bioaccumulates over time and is mostly stored in human bone." (Id. at ¶ 6.)

In Count I, Plaintiff claims Defendant deprived him of his rights to bodily integrity and to care and protect his grandson; Plaintiff also claims that, under the state-created danger doctrine, Defendant exposed him and others to possible lead poisoning

. (Id. at ¶¶ 4, 7, 30, 33, 37, 39.) Plaintiff further claims he has been denied his procedural due process right to seek redress for Defendant's conduct. (Id. at ¶ 35.) In Count II, Plaintiff claims Defendant violated his right "to clean water" under Art. 97 of the Amendments to the Massachusetts Constitution. (Id. at ¶¶ 38-39.) He alleges he has suffered and will suffer emotional, economic, and physical injuries, but the complaint does not seek monetary damages. (Id. at ¶¶ 3-7, 32-33, 36-37, 39.) Rather, he seeks declaratory and injunctive relief, including an order requiring Defendant to provide bottled water to schools, install lead-free water supply lines in contaminated schools, conduct periodic lead testing, and perform an independent assessment of the extent of students' and others' lead exposure. (Id. at Prayer for Relief.) Plaintiff also requests the appointment of a monitor to ensure Defendant complies with lead standards in proposed legislation pending in Massachusetts in 2017. (Id. )

II. CLAIMS BROUGHT ON BEHALF OF A MINOR OR OTHER PERSON

Plaintiff listed himself as the only plaintiff in the caption on the complaint. But throughout the complaint, his various motion papers, and at oral argument, he stated he is bringing this action to protect the rights of himself, his grandson, all other students and parents, teachers, staff, and the general public. (Compl. (Dkt. No. 1) at ¶¶ 3-6, 32-34, 36, 39; MTD Opp. (Dkt. No. 14) at 1-3, 13-15; Motion for PI (Dkt. No. 24) at 1; PI Brief (Dkt. No. 25) at 1-2, 7-14.) Defendant did not raise the issue of standing in its motion to dismiss, but, in its opposition to Plaintiff's motion for a preliminary injunction, Defendant argued Plaintiff lacks standing to assert claims on his grandson's behalf.

"By law, there are ‘only’ two ways an individual may appear in federal court, either ‘pro se or through legal counsel.’ " Clauson v. Town of W. Springfield , No. Civ. A. 99-30134-MAP, 2000 WL 251740, at *2 (D. Mass. Feb. 3, 2000) (quoting Herrera-Venegas v. Sanchez-Rivera , 681 F.2d 41, 42 (1st Cir. 1982) ); see also 28 U.S.C. § 1654 ("the parties may plead and conduct their own cases personally or by counsel"). Accordingly, a pro se party cannot represent people other than him or herself. See Crippa v. Johnston , No. 91-1676, 1992 WL 245716, at *1 (1st Cir. Oct. 1, 1992) (per curiam) ("We have interpreted [ 28 U.S.C. § 1654 ] as barring a non-lawyer from representing anyone else but himself or herself."). The First Circuit has explained the rule's purpose:

[A] party may be bound, or its rights waived, by its legal representative. When that representative is a licensed attorney there are grounds for belief that the representative's character, knowledge and training are equal to the responsibility. In addition, remedies and sanctions are available against the lawyer that are not available against [a lay representative], including misconduct sanctions and malpractice suits.

Herrera-Venegas , 681 F.2d at 42 (assessing rule prohibiting lay representation in context of non-lawyer prisoner seeking to represent follow inmates).

The rule even bars a non-lawyer parent from representing his or her child. See Crippa , 1992 WL 245716, at *1 ("[A]lthough appellant and her children were represented by counsel below, appellant is appearing pro se on appeal. As a result, she may not represent her children in this appeal.") (citing 28 U.S.C. § 1654 ); Ethan H. v. State of N.H. , No. 92-1098, 1992 WL 167299, at *1 (1st Cir. July 21, 1992) (pro se parents...