Jane Doe v. City of Elizabeth

• Citation: 374 F.Supp.3d 188
• Decision Date: 16 April 2019
• Docket Number: C.A. No. 17-365-JJM-LDA
• Parties: Jane DOE, Parent and NEXT of FRIEND of Mary DOE, a Minor in and for Her Own Behalf and in Their Own Right, Plaintiffs, v. CITY OF PAWTUCKET, Rhode Island ; Patti DiCenso, Superintendent of Pawtucket School Department, in Her Official and Individual Capacity; Pawtucket School Committee and Pawtucket School Committee Members: Gerald Charbonneau, Chair, Michael Araujo, Joanne Bonollo, Erin Dube, John J. Crowley, Joseph Knight, and Elena Vasquez, in Their Official Capacity; Linda Gifford, School Principal of Pawtucket Learning Academy, in Her Official and Individual Capacity; David Morton, in His Official and Individual Capacity; Thomas J. Anderson, in His Official and Individual Capacity; Karen Dube, in Her Official and Individual Capacity; Elizabeth Velis, in Her Official and Individual Capacity; Lee Rabbit, in Her Official and Individual Capacity; Kerri Day, in Her Official and Individual Capacity; Susan Hall, in Her Official and Individual Capacity; Michaela Frattarelli, in Her Official and Individual Capacity; Christopher Swiczewicz, in His Official and Individual Capacity; and Shaun w. Strobel, Pawtucket City Treasurer; and Unknown Richard and Rita Roes, Defendants.
• Court: U.S. District Court — District of Rhode Island

374 F.Supp.3d 188

Jane DOE, Parent and NEXT of FRIEND of Mary DOE, a Minor in and for Her Own Behalf and in Their Own Right, Plaintiffs,

v.CITY OF PAWTUCKET, Rhode Island ; Patti DiCenso, Superintendent of Pawtucket School Department, in Her Official and Individual Capacity; Pawtucket School Committee and Pawtucket School Committee Members: Gerald Charbonneau, Chair, Michael Araujo, Joanne Bonollo, Erin Dube, John J. Crowley, Joseph Knight, and Elena Vasquez, in Their Official Capacity; Linda Gifford, School Principal of Pawtucket Learning Academy, in Her Official and Individual Capacity; David Morton, in His Official and Individual Capacity; Thomas J. Anderson, in His Official and Individual Capacity; Karen Dube, in Her Official and Individual Capacity; Elizabeth Velis, in Her Official and Individual Capacity; Lee Rabbit, in Her Official and Individual Capacity; Kerri Day, in Her Official and Individual Capacity; Susan Hall, in Her Official and Individual Capacity; Michaela Frattarelli, in Her Official and Individual Capacity; Christopher Swiczewicz, in His Official and Individual Capacity; and Shaun w. Strobel, Pawtucket City Treasurer; and Unknown Richard and Rita Roes, Defendants.

C.A. No. 17-365-JJM-LDA

United States District Court, D. Rhode Island.

Signed April 16, 2019

George P. Hovarth, Law Offices of Hovarth & Hovarth, Pawtucket, RI, Edward John Mulligan, Lincoln, RI, for Plaintiffs.

Marc DeSisto, Patrick K. Cunningham, DeSisto Law LLC, Jon M. Anderson, Brennan, Recupero, Cascione, Scungio & McAllister, LLP, Providence, RI, Matthew C. Reeber, Patrick J. McBurney, Pannone Lopes Devereaux & O'Gara LLC, Johnston, RI, for Defendants.

MEMORANDUM AND ORDER

JOHN J. MCCONNELL, JR., United States District Judge

Defendants have jointly moved to dismiss Plaintiffs' Third Amended Complaint. ECF No. 73, For reasons set forth below, the Court GRANTS Defendants' motion.

I. BACKGROUND

Plaintiffs, Mary Doe ("Mary"), a minor, and Jane Doe, her mother and next of friend, brought this action alleging various federal and state Jaw claims against the City of Pawtucket, the Pawtucket School Committee and its members, Superintendent of School, Patti DiCenso, Principal of the Pawtucket Learning Academy, Linda Gifford, and additional teachers and members of the Pawtucket Learning Academy ("PLA") staff, regarding alleged incidents of sexual assault. At all relevant times, Mary was a student at the PLA, a federally funded school in the City of Pawtucket for students with disabilities and students treated as disabled students. ECF No. 57 at ¶¶ 17, 24. The Complaint involves five allegations of sexual assault:

Allegation 1: Mary alleges that she was raped, assaulted, and molested for two years at the PLA. Id. at ¶ 26. The allegations include that during school hours and other occasions, "at or on the way to and from gym classes, during class hours," unnamed students would "grab at," "butt slap," and "grope" Mary, and "make sexual remarks and suggestions to her," while Defendants "stood by." Id. at ¶ 27.

Allegation 2: Mary alleges that in April 2016, a "male gym student got behind [Mary], and simulated sexual fornication by rubbing his genitalia area against [Mary's] clothed anal area, in front of the gym teacher and class." Id. at ¶ 30. The Complaint also includes that "[a]t that time, [the gym teacher] and/or the school contacted the police." Id.

Allegation 3: Mary alleges that in May 2016, a student raped her in the school bathroom. Id. at ¶ 35. The Complaint continues that Principal Gifford asked Mary if she "had sex with [the student]?" and "took no further steps" when Mary answered yes. Id. at ¶ 38.

Allegation 4: Mary alleges that in June 2016, a student at the school, Ivander DeBurgo, sexually assaulted her in the school while she was waiting for her father to pick her up. Id. at ¶¶ 50, 57.¹ The Complaint includes that Principal Gifford and other teachers directed Mr. DeBurgo to leave the building. Id. at ¶¶ 43, 50. After being directed to leave, Mr. DeBurgo unlawfully re-entered the building. Id. at ¶ 53. Mr. DeBurgo entered Defendant Thomas Anderson's classroom and he told Mr. DeBurgo to leave. Id. at ¶ 47. Mary left Mr. Anderson's classroom and was found in the bathroom with Mr. DeBurgo by Mrs. McLaughlin. Id. at ¶¶ 56, 61-65.

The Complaint alleges that all Defendants knew of Mr. DeBurgo's propensity for sexual assault and that Superintendent Patti DiCenso conspired with Assistant Superintendent Lee Rabbit and Dean Christopher Swiczewicz to keep the matter quiet. Id. at ¶¶ 40, 42, 68.

Allegation 5: Mary alleges that in April 2017, a faculty member, David Morton, "smacked and grabbed her butt..." Id. at ¶ 78. The Complaint also alleges that before the incident, Defendants DiCenso, Rabbit, Gifford, Swiczewicz, and Anderson "had, for some time, known of" incidents whore Mr. Morton touched and tapped the inner thigh of three other students. Id.

II. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), Mary must present facts that make her claim plausible on its face. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To determine plausibility, the court must first review the complaint and separate conclusory legal allegations from allegations of fact. See Rodriguez-Reyes v. Molina-Rodriguez , 711 F.3d 49, 53 (1st Cir. 2013). Next, the court must consider whether the remaining factual allegations give rise to a plausible claim of relief. See id.

To state a plausible claim, a complaint need not detail factual allegations, but must recite facts sufficient at least to "raise a right to relief above the speculative level..." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. A pleading that offers "labels and conclusions" or "a formulative recitation of the elements of a cause of action" will not suffice. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Nor does a complaint suffice if it tenders "naked assertion[s] devoid of further factual enhancement." Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ); see also Soto-Torres v. Fraticelli , 654 F.2d 153, 159 (1st Cir. 2011) (holding that combined allegations, taken as true, "must state a plausible, not a merely conceivable, case for relief.").

III. DISCUSSION

A. The Complaint Fails to State Any Substantive Allegations Against Defendants Elizabeth Velis, Kerri Day, Susan Hall, and Michaela Frattarelli.

Mary does not make any substantive allegations against Defendants Velis, Day, Hall, and Frattarelli.² A complaint must have factual content that allows the Court to draw reasonable inferences that a specific Defendant is liable for the alleged misconduct. See Igbal , 556 U.S. at 678, 129 S.Ct. 1937. To draw an inference, the complaint must allege facts linking each Defendant to the grounds on which that Defendant is potentially liable. See id.

Defendants Velis, Day, Hall, and Frattarelli are listed only in paragraph 12 of the Complaint as PLA personnel and in paragraph 22 of the Complaint as teachers. Beyond the cursory references, there are no substantive allegations or facts linking any of these Defendants to the grounds on which they are potentially liable. For these reasons, the claims against these Defendants are dismissed.

B. The Title IX Claim (Count I) Fails

In Count I, Mary sues Defendants under Title IX of the Education Amendments of 1972 ("Title IX"). See 20 U.S.C. §§ 1681, et seq. Mary alleges that the Defendant School District violated her rights when it "continued to subject [Mary]...to sexual harassment based on her sex" and "failed to promptly and appropriately respond to the sexual harassment and assaults..." ECF No. 57 at ¶¶ 81, 82. Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).

1. The Title IX Claim Fails Against All Individual Defendants.

Courts have limited claims under Title IX to suits against grant recipients and held that Title IX does not authorize "suit against school officials, teachers, and other individuals." Frazier v. Fairhaven Sch. Com. , 276 F.3d 52, 65 (1st Cir. 2002). Here, no individually named defendant is a recipient of federal funding. Accordingly, Title IX claims against all individual Defendants are dismissed.

2. The Title IX Claim Fails to Set Forth Facts to Establish the Required Elements of Notice, Severity, and Deliberate Indifference.

A recipient of federal funding can be liable under Title IX if "its deliberate indifference subjects its students to harassment." Doe v. Brown University , 896 F.3d 127, 130 (1st Cir. 2018) (citing Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 644, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ). To establish such a "deliberate indifference" claim, Mary must set forth sufficient plausible facts that would show that (1) she was subject to "severe, pervasive, and objectively offensive" sexual harassment; (2) the harassment caused her to be deprived of educational opportunities or benefits; (3) the Defendants were aware of this harassment in (4) its programs and activities and (5) its response, or lack thereof, to the harassment was "clearly unreasonable." Porto v. Town of Tewksbury , 488 F.3d 67, 72-73 (1st Cir. 2007).

a. Allegation 1

Mary alleges that she was raped, assaulted, and molested for two years at the PLA and that all Defendants "knew or should have known" about it. ECF No. 57 at ¶ 26. The allegations read as generalized assertions that "[d]uring school hours and [diverse] occasions, co-student(s) would grab at her buttocks, harass her, threaten her, sexually discriminate against her, and make sexual remarks and suggestions to her..." Id. at ¶ 27. Mary also alleges that she was subjected to several sexual incidents, at or on the way to and from gym...