Pollard v. Georgetown Sch. Dist.

• Decision Date: 17 September 2015
• Docket Number: Civil Action No. 14-cv-14043-DJC
• Citation: 132 F.Supp.3d 208
• Parties: Jennier Pollard, individually and as next friend and parent of her minor son, J.H., Plaintiff, v. Georgetown School District, Defendant.
• Court: U.S. District Court — District of Massachusetts

132 F.Supp.3d 208

Jennier Pollard, individually and as next friend and parent of her minor son, J.H., Plaintiff,

v.Georgetown School District, Defendant.

Civil Action No. 14-cv-14043-DJC

United States District Court, D. Massachusetts.

Signed September 17, 2015

Christopher J. Poulin, Debbie L. Makris, Getman, Schulthess & Steere, P.A., Manchester, NH, for Plaintiff.

Judy A. Levenson, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

Denise J. Casper

, United States District Judge

I. Introduction

Plaintiff Jennifer Pollard ("Pollard") brings this lawsuit on behalf of her minor son, J.H., against the Georgetown School District ("District"); Carol Jacobs, the District Superintendent; and current and former District employees, Heidi Mongeau, Peter Lucia and Brian Gill (collectively, "Defendants"). Pollard alleges that Defendants denied her son a free and appropriate public education and failed to protect him from bullying based upon his disability, religion, ethnicity and perceived sexual orientation in violation of the First, Fourth and Fourteenth Amendments, Title IX of the Individuals with Disability Education Act, Title VI of the Civil Rights Act and the Rehabilitation Act of 1973. D. 9. Pollard also asserts similar claims under Massachusetts state law. Id. Defendants have moved to dismiss. D. 15. For the reasons stated below, the Court ALLOWS IN PART and DENIES IN PART their motion to dismiss.

II. Standard of Review

In considering a motion to dismiss, the Court will dismiss a claim that fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

. To

state a plausible claim, a complaint need not contain detailed factual allegations but must recite facts sufficient at least to "raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955

. "A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. (alteration in original) (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). Ultimately, "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When considering the motion, the Court can consider implications from documents attached to or fairly incorporated into the complaint, facts susceptible to judicial notice, and concessions in a plaintiff's response to the motion to dismiss. Schatz v. Republican State Leadership Comm. , 669 F.3d 50, 55–56 (1st Cir.2012).

III. Background

A. Factual Background

In deciding Defendants' motion to dismiss, the Court accepts the factual allegations in the amended complaint as true but is "not bound to accept ... a legal conclusion couched as a factual allegation." San Geronimo Caribe Project, Inc. v. Acevedo–Vila , 687 F.3d 465, 471 (1st Cir.2012)

(quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) (internal quotation mark omitted).

J.H. is a minor and a resident of Georgetown, Massachusetts. D. 9 (Am. Compl.) ¶ 3. Until he completed eighth grade, J.H. was a student enrolled in the District's public schools. Id. ¶ 4.

J.H. was born prematurely at 27 weeks in September 1999. Id. ¶ 8. Throughout his early childhood, J.H. faced physical and developmental challenges. Id. ¶ 10. During his childhood and adolescence, he was exceptionally small for his age. Id. In addition to his physical ailments, J.H. has been diagnosed with attention deficit hyperactivity disorder

and an executive function disorder. Id. ¶ 11. His symptoms include inappropriate social behavior, an inability to inhibit impulsive responses and issues with effective problem-solving. Id. ¶ 12.

As a public school student with a disability, J.H. was prescribed a student accommodation plan under § 504 of the Rehabilitation Act of 1973 ("504 Plan"). Id. ¶ 16. The 504 Plan directed the District to accommodate J.H. in certain ways, including monitoring his peers' conduct, protecting J.H. from abuse and ensuring specific counseling and supervision. Id.

As alleged, during his time at Georgetown Middle / High School, J.H. was "regularly emotionally, physically and verbally bullied and abused" because of his unaccepted social behavior, his small physical stature, his Jewish ethnicity and religion, his perceived sexual orientation and other symptoms caused by his developmental disorders. Id. ¶¶ 18-20. The abuse and bullying occurred both at school and outside of school. Id. ¶ 21. His peers have mocked J.H. "with snide comments about Jews being massacred and stating that the Holocaust was unsuccessful because J.H.'s family survived." Id. ¶ 23. They have used social media "to express their desire to kill J.H., to stab him, and to beat him." Id. ¶ 24. Students have "posted, texted and written on school property that J.H. is gay and has small sex organs." Id. ¶ 26. They have spied on J.H. in the restroom and claim to have taken and disseminated photographs of him there. Id. ¶ 27. Some peers have actually assaulted him. Id. ¶ 25. "J.H.'s attackers have interfered with the few friendships he has been able to make by telling lies and/or describing J.H's characteristics and disabilities in a manner that drove his friends away and kept others from interacting with him in a positive way." Id. ¶ 28.

The amended complaint also alleges that the District's teachers and administrators have engaged in their own abusive conduct. Id. ¶ 32. The individual Defendants not only were unsuccessful in protecting J.H. from fellow pupils, but the District's personnel "perpetuated and exacerbated J.H's suffering with their own conduct." Id. ¶ 22. J.H.'s gym teacher implied that J.H. was female or referred to him as female in front of other students. Id. ¶ 33. Another teacher allowed students to force J.H. to work in isolation during group projects. Id. ¶ 34. Abusive conduct and failure to act against the bullying by other students has attracted further abuse. Id. ¶ 36. Throughout this time, J.H. and his parents "made repeated pleas for assistance," but the District's administrators "failed to investigate the issues in a manner that protected J.H., failed to take action to prevent additional abuse, and failed to protect him from this abuse." Id. ¶¶ 38, 40. J.H. was "threatened with punishment for ‘retaliating’ when reporting threats of physical violence.' " Id. ¶ 41.

B. Procedural History

Pollard filed this lawsuit on October 30, 2014. D. 1. She filed an amended complaint on January 13, 2015. D. 9. Defendants have now moved to dismiss that complaint. D. 15. The Court heard argument on the motion on August 6, 2015 and took this matter under advisement. D. 31.

IV. Discussion

A. Plaintiff Fails to State a Claim for Negligence Against the District and the Individual Defendants (Counts I and II)

Count I alleges a negligence claim against the District. D. 9 ¶¶ 48-58. Defendants argue that Count I must be dismissed because Pollard failed to comply with the presentment requirement under the Massachusetts Tort Claims Act. D. 16 at 4; D. 23 at 4.

Under Massachusetts law, a party asserting a negligence claim against a public employer must first present her claim in writing to the public employer's executive officer. McCarthy v. City of Newburyport , 252 Fed.Appx. 328, 334 (1st Cir.2007)

(citing Mass. Gen. L. c. 258, § 4 ). The presentment requirement is written with "conspicuous clarity, and the Massachusetts Supreme Judicial Court ... has left little doubt that its plain meaning controls." Haley v. City of Boston , 657 F.3d 39, 54 (1st Cir.2011) (citing Holahan v. City of Medford , 394 Mass. 186, 189, 474 N.E.2d 1117 (1985) ). "Presentment is not a mere technicality," Morales v. Desmarais , No. 12–cv–12096–LTS, 2013 WL 3208610, at *2 (D.Mass. June 21, 2013), but "ensures that the responsible public official receives notice of the claim so that that official can investigate to determine whether or not a claim is valid, preclude payment or inflated or nonmeritorious claims, settle valid claims expeditiously, and takes steps to ensure that similar claims will not be brought in the future." Roges v. Boston Pub. Sch. , No. 14–cv–13471–RGS, 2015 WL 1841349, at *4 (D.Mass. Apr. 17, 2015) (quoting Lodge v. Dist. Attorney for the Suffolk Dist. , 21 Mass.App.Ct. 277, 283, 486 N.E.2d 764 (1985) ) (internal quotation mark omitted). "It is irrelevant that the defendant may not have suffered any prejudice by reason of the lack of actual notice."

Robinson v. Commonwealth , 32 Mass.App.Ct. 6, 10, 584 N.E.2d 636 (1992)

.

Pollard concedes that she did not present J.H.'s tort claims to the executive officer. D. 20 at 4 (stating that Defendants "correctly allege that the plaintiffs did not present J.H.'s state tort claims to the ‘executive officer’ of the Town of Georgetown"). Yet she argues that the pertinent executive officer here was the District's Superintendent and the Superintendent was nevertheless on notice of "all of J.H.'s claims" because (1) Pollard had asked the Superintendent in December 2013 to find an alternative school placement for J.H., (2) she had complained to the Massachusetts Department of Elementary and Secondary Education in May 2014 about the District's unwillingness to have another school district accept J.H. for high school and (3) the District's counsel had declined in June 2014 to mediate with her. Id. at 4–5. She attaches documents in support of this argument to her opposition. D. 20-3, 20-4, 20-5.

Presentment, however, "must be made ‘in strict compliance with the statute.’ "...