UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cydney Johnson and Dan Johnson, on behalf of, and as next friend of, M.J.

v. Civil No. 13-cv-207-LM Opinion No.

Prospect Mountain JMA School District SAU 301; Primex3; and J. Fitzpatrick, individually and as Principal of Prospect Mountain High School

O R D E R

On behalf of their minor son, M.J., Cydney Johnson (“Mrs.

Johnson”) and Dan Johnson have sued three defendants in

seventeen counts, asserting federal and state claims arising

from the treatment M.J. received while he was a student at

Prospect Mountain High School (“PMHS”). Under federal law,

plaintiffs assert claims against Prospect Mountain JMA School

District SAU 301 (“School District”) and PMHS principal J.

Fitzpatrick for violating M.J.’s: (1) Fourteenth Amendment

equal-protection rights; (2) Fifth and Fourteenth Amendment due-

process rights; and (3) Fifth and Fourteenth Amendment rights.

In addition, while it is not entirely clear, plaintiffs may be

asserting, in Count XVII, a claim against the School District

under the federal Family Educational Rights and Privacy Act.

Counts IV-XVII assert claims under state law against the School District, Fitzpatrick, and Primex3.1 Before the court are one

motion to dismiss filed by the School District and Fitzpatrick

and two motions to dismiss filed by Primex3. Plaintiffs object.

For the reasons that follow, plaintiffs’ federal claims are

dismissed pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, and the court declines to exercise supplemental

jurisdiction over the remaining state-law claims.

A Preliminary Matter

The court begins by addressing several confusing aspects of

plaintiffs’ complaint. Counts I-III assert claims against

Fitzpatrick and the School District. Regarding Fitzpatrick,

plaintiffs have sued him in both his official and individual

capacities, which are legally distinct, see Goldstein v. Galvin,

(1st Cir. 2013) (“a person sued in his official

capacity is a different party, in contemplation of law, than the

same person sued in his individual capacity”). However, nothing

in the complaint indicates whether the claims in Counts I-III

are being asserted against Fitzpatrick in his individual

capacity, his official capacity, or both. The court will

resolve that ambiguity by construing the complaint as asserting

1 According to plaintiffs, Primex3 is a trade name used by the New Hampshire Public Risk Management Exchange. First Am. Compl. (doc. no. 38) ¶ 7.

2 the claims in Counts I-III against Fitzpatrick in both of his

capacities. That said, in the analysis that follows, the court

will use the term “School District” to refer, collectively, to

the School District and Fitzpatrick acting in his official

capacity, because “an official capacity suit is, in all respects

other than name, to be treated as a suit against the entity” for

which the official-capacity defendant is acting as an agent,

(quoting Kentucky v. Graham,

(1985)).

A second unusual aspect of plaintiffs’ complaint concerns

their characterization of the causes of action on which they

base Counts I-III. Counts I and II are labeled constitutional

claims, while Count III is captioned as a claim under

. That statute provides, in pertinent part, that

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law . . . .

However:

There is no separate cause of action for a violation of § 1983. Cruz–Erazo v. Rivera–Montanez,

(1st Cir. 2000). Rather, § 1983 is the vehicle through which an individual may bring suit for constitutional violations.

3 Goldblatt v. Geiger,

(D.N.H. 2012).

Accordingly, the court treats all of plaintiffs’ constitutional

claims as having been brought through the vehicle of § 1983.

Standard of Review

Ruling on a motion to dismiss for “failure to state a claim

upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6),

requires the court to conduct a limited inquiry, focusing not on

“whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims.”

Scheuer v. Rhodes,

(1974). When considering

such a motion, a trial court “accept[s] as true all well-pled

facts in the complaint and draw[s] all reasonable inferences in

favor of plaintiffs.” Plumbers’ Union Local No. 12 Pension Fund

v. Nomura Asset Acceptance Corp.,

(1st Cir.

2011) (quoting SEC v. Tambone,

(1st Cir.

2010)).

To survive a Rule 12(b)(6) motion, a complaint “must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” González-

Maldonado v. MMM Healthcare, Inc.,

(1st Cir.

2012) (quoting Ashcroft v. Iqbal,

(2009);

citing Bell Atl. Corp. v. Twombly,

(2007)).

4 On the other hand, “[i]f the factual allegations in the

complaint are too meager, vague, or conclusory to remove the

possibility of relief from the realm of mere conjecture, the

complaint is open to dismissal.” Katz v. Pershing, LLC,

(1st Cir. 2012) (quoting Tambone,

).

Background

The facts in this section are drawn from the complaint.

See Butler v. Balolia,

(1st Cir. 2013) (citing

Rodríguez-Reyes v. Molínar-Rodríguez,

(1st Cir.

2013)). Mrs. Johnson is a former member of the PMHS School

Board (“School Board” or “Board”). Due to her service on the

Board, a number of Board members and PMHS employees “subjected

[her] to threats, false police reports, defamation of character,

and other troubling behavior[s].” First Am. Compl. (doc. no.

38) ¶ 12. Toward the end of Mrs. Johnson’s tenure on the Board,

one member, Terri Noyes (“Mrs. Noyes”) said to Mrs. Johnson

“your time will come.” Id. ¶ 24.

Abuse was directed not only at Mrs. Johnson, but also at

her family, including M.J. For example, M.J. played on the PMHS

baseball team. He was coached by Mrs. Noyes’s husband (“Coach

Noyes”). He, in turn, worked M.J. excessively hard, restricted

his practice and playing time, verbally abused him, threw a

5 scorebook at him, and enforced “NHIAA rules” against him that he

did not enforce against other players. In addition, a PMHS

teacher, Brian Hikel, disciplined M.J. for behavior, such as

“high-fiving,” for which other students were not disciplined.

Hikel also made “rude or disrespectful comments” to M.J. and his

parents.

The Johnsons complained to Fitzpatrick about the treatment

M.J. was receiving at PMHS, and they met with Fitzpatrick and

other PMHS administrators on several occasions to discuss their

complaints. Those administrators repeatedly told the Johnsons

that they were afraid of retaliation by Mrs. Noyes. During a

meeting on April 14, 2012, the Johnsons were specifically told

that no action would be taken on an issue they had raised

because Fitzpatrick feared retaliation by Mrs. Noyes. Upon

discovering that the Johnsons had complained to Fitzpatrick,

Coach Noyes “intensified his harassment[]” of M.J. First Am.

Compl. ¶ 42. Eventually, the Johnsons placed M.J. in another

school.

Discussion

Given the overlap created by plaintiffs’ decision to plead

constitutional claims in Counts I and II and to identify § 1983

as the cause of action in Count III, it makes more sense to

6 focus the following discussion on plaintiffs’ specific

constitutional claims rather than to proceed on a count-by-count

basis. There are three constitutional rights at issue in this

case, i.e., M.J.’s rights to equal protection, substantive due

process, and procedural due process. In their objection to the

motion for summary judgment filed by the School District and

Fitzpatrick, plaintiffs refer to M.J.’s “fundamental

constitutional right[] to education,” doc. no. 35, at 11.

Education, however, is not a constitutional right; it is a

fundamental right, granted by the state, which must be provided

in accordance with constitutional principles. See Goss v.

Lopez,

(1975). When discussing each of the

three constitutional rights at issue, the court begins by

considering Fitzpatrick in his individual capacity and then

turns to the School District, which includes Fitzpatrick in his

official capacity. After considering each of the three relevant

constitutional rights, the court discusses the federal statutory

claim that plaintiffs may be raising in Count XVII, and then

concludes by addressing plaintiffs’ claims under state law.

A. Equal Protection

The crux of plaintiffs’ equal-protection claims is that

while M.J. was a student at PMHS, he was treated less

7 advantageously than other PMHS students on account of his family

background and his parents’ political views. Ordinarily, equal-

protection claims arise when a member of a protected class, such

as a racial minority, is treated less advantageously than people

outside the protected class. But, the Supreme Court has

recognized, and the First Circuit has embraced, an equal-

protection theory based upon adverse treatment meted out to a

person who is not a member of a protected class but, rather, is

a member of a class of one. See Vill. of Willowbrook v. Olech,

(2000); Gianfrancesco v. Town of Wrentham,

, (1st Cir. 2013); Middleborough Veterans’ Outreach

Ctr., Inc. v. Provencher,

(1st Cir. 2013).

“Under the class-of-one rubric, an equal protection plaintiff

may press a claim ‘that [he] has been intentionally treated

differently from others similarly situated and that there is no

rational basis for the difference in treatment,’ even where he

does ‘not [show] membership in a class or group.’”

Gianfrancesco,

(quoting Olech,

).

Here, plaintiffs are pressing class-of-one equal-protection

claims against Fitzpatrick and the School District.

1. Fitzpatrick

Plaintiffs claim that M.J. was bullied and harassed by a

PMHS coach and a PMHS teacher, and that Fitzpatrick “fail[ed] to

8 enforce the terms of [the PMHS] student handbook, and apply the

rules and protocols required of [him] for the protection of M.J.

in a uniform and equal manner.” First Am. Compl. (doc. no. 38)

¶ 59. Plaintiffs have failed to state a class-of-one equal-

protection claim against Fitzpatrick.

In Gianfrancesco, the First Circuit explained that “a

class-of-one plaintiff bears the burden of showing that his

comparators are similarly situated in all respects relevant to

the challenged government action.”

(citing

Provencher,

; Rectrix Aerodrome Ctrs., Inc.

v. Barnstable Mun. Airport Comm’n,

(1st Cir.

2010)). Based upon that principle, the Gianfrancesco court

affirmed the district court’s dismissal of a class-of-one equal-

protection claim where the complaint identified one comparator

but made “no effort to establish how or why the Anvil Pub [i.e.,

the comparator] [was] similarly situated to Tom’s Tavern in any

relevant way, and [did] not mention any other putative

comparator.”

. Here, plaintiffs do not identify

even a single comparator who Fitzpatrick treated better than he

treated M.J. with regard to the enforcement of the PMHS student

handbook or any other rule or protocol. Accordingly,

Fitzpatrick is entitled to dismissal of the class-of-one equal-

protection claim that has been asserted against him.

9 As the court has noted, the conduct by Fitzpatrick on which

plaintiffs base their equal-protection claim is his failure to

enforce applicable protocols. The complaint also describes

conduct by Coach Noyes, and teacher Brian Hikel. Had the coach

and the teacher been named as defendants, thus bringing their

conduct toward M.J. into play, and if plaintiffs had asserted

class-of-one equal-protection claims against them, those claims

would very likely be subject to dismissal for two reasons.

First, as with the claim against Fitzpatrick, plaintiffs

have identified no specific comparators, i.e., similarly

situated baseball players who Mr. Noyes treated better than he

treated M.J., or similarly situated students who Hikel treated

better than he treated M.J.

Beyond that, the applicability of the class-of-one rubric

to the classroom setting is quite limited, given that so much of

what educators do involves “discretionary decisionmaking based

on a vast array of subjective, individualized assessments,”

Engquist v. Or. Dep’t of Agric.,

(2008); see

also Kyung Hye Yano v. City Colls. of Chi., No. 08-CV-4492,

, at *3 (N.D. Ill. July 19, 2013). Class-of-one

claims are available in the educational context only when the

arbitrary treatment “has no conceivable connection to

‘educational or safety concerns [and] exceeds the scope of

10 professionally acceptable choices[.]’” Yano,

,

at *3 (quoting Mathers v. Wright,

(8th Cir.

2011)).

Here, it is highly unlikely that plaintiffs could state a

class-of-one equal-protection claim against either Coach Noyes

or Hikel, because the conduct on which such a claim would be

based falls so far short of the egregiousness of the

mistreatment that supported such claims in Yano,

, at *2 (ruling that class-of-one claim was stated based

upon allegations that one teacher called student derogatory

names and humiliated her in front of classmates, and second

teacher followed student around campus and applied different

grading system to her exams), and Mathers,

(ruling that class-of-one claim was stated where teacher refused

to teach disabled student, isolated her during recess and fire

drills, and made her crawl on the floor).

So, to restate, Fitzpatrick is entitled to dismissal of

plaintiff’s equal-protection claim against him.

2. The School District

Section 1983 claims are typically brought against

individuals acting under color of state law. While § 1983 does

not provide for the vicarious liability of government entities

that employ individuals who commit constitutional violations,

11 see Freeman v. Town of Hudson,

(1st Cir.

2013) (quoting Monell v. Dep’t of Soc. Servs.,

(1978)), there are certain circumstances under which a

government entity may be held liable under § 1983, see generally

Monell,

. But, because plaintiffs have failed to

adequately allege an equal-protection violation by Fitzpatrick,

there is no “need [to] consider whether [they have] pled a basis

for municipal liability under Monell,” Gianfrancesco,

n.4. That is because “policy or practice aside, a

municipality cannot be liable for the actions of its officials

under Monell if those actions ‘inflicted no constitution harm,’”

(quoting Robinson v. Cook,

(1st Cir. 2013);

citing City of L.A. v. Heller,

(1986)), and

Fitzpatrick is the only PMHS employee against whom plaintiffs

have asserted claims for inflicting constitutional harm. Thus,

the School District is entitled to dismissal of plaintiffs’

equal-protection claim.

B. Substantive Due Process

The precise contours of plaintiffs’ substantive due-process

claims are somewhat difficult to discern. However, construing

the amended complaint in the manner most favorable to

plaintiffs, it would seem that those claims rest upon inaction

12 in the face of their complaints about M.J.’s treatment, and/or

dissemination of those complaints to PMHS employees.

1. Fitzpatrick

Plaintiffs claim that Fitzpatrick violated M.J.’s

substantive due-process rights by failing to respond to their

complaints and by telling other school employees about them.

Assuming that plaintiffs have adequately identified a liberty

interest on which Fitzpatrick’s conduct encroached, they have

still failed to state a claim on which relief can be granted.

To establish a substantive due-process claim, a “plaintiff

must show both that the [defendant’s] acts were so egregious as

to shock the conscience and that they deprived him of a

protected interest in life, liberty, or property.” Harron v.

Town of Franklin,

(1st Cir. 2011) (quoting

Pagán v. Calderón,

(1st Cir. 2006); citing

Martínez v. Cui,

(1st Cir. 2010)) (emphasis

omitted). With regard to the first element of a substantive

due-process claim, the court of appeals has recently described

the applicable legal standard:

“There is no scientifically precise formula for determining whether executive action is — or is not — sufficiently shocking to trigger the protections of the substantive due process branch of the Fourteenth Amendment.” Pagán,

. However, certain principles have emerged from the case law. Executive acts that shock the conscience must be “truly

13 outrageous, uncivilized, and intolerable,” Hasenfus v. LaJeunesse,

(1st Cir. 1999), and “the requisite arbitrariness and caprice must be stunning, evidencing more than humdrum legal error,” Amsden v. Moran,

, 754 n.5 (1st Cir. 1990). Indeed, “[a] hallmark of successful challenges is an extreme lack of proportionality, as the test is primarily concerned with violations of personal rights so severe[,] so disproportionate to the need presented, and so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.” González–Fuentes v. Molina,

, 881 (1st Cir. 2010) (internal quotation marks and ellipses omitted).

Harron,

.

Here, the court cannot say that any of the things that

Fitzpatrick is alleged to have done (or not done) amounted to a

violation of M.J.’s substantive due-process rights. Failing to

properly investigate parental complaints and failing to keep

those complaints confidential are not such stunning or egregious

acts that they shock the conscience. Thus, Fitzpatrick is

entitled to dismissal of plaintiffs’ substantive due-process

claim against him.

2. The School District

Because plaintiffs have failed to state a substantive due-

process claim against Fitzpatrick, the School District is also

entitled to dismissal of plaintiffs’ substantive due-process

claim. See Gianfrancesco,

n.9.

14 C. Procedural Due Process

As with plaintiffs’ substantive due-process claims, the

contours of their procedural due-process claims are not easy to

discern from their complaint. Their objection to defendants’

motion to dismiss, however, identifies four government decisions

on which the claims may be based: (1) “the decision to retain

. . . Coach . . . Noyes after many years of complaints” against

him, Pl.’s Obj. (doc. no. 35) 8; (2) Hickel’s decision to treat

M.J. differently than other students; (3) the PMHS

administration’s failure to properly document, address, or

investigate plaintiffs’ complaints; and (4) PMHS’s failure to

conduct an investigation into those complaints.

1. Fitzpatrick

The court begins by noting that the second and fourth bases

for plaintiffs’ procedural due-process claim against Fitzpatrick

are insufficient as a matter of law; the second is based

exclusively upon conduct by Hikel, while the fourth, as

described in plaintiff’s objection, is based solely upon the

conduct of Primex3. Thus, construed most favorably to

plaintiffs, their complaint asserts procedural due-process

claims against Fitzpatrick for retaining Coach Noyes and failing

to properly handle their complaints.

15 “To state a procedural due process claim under § 1983, the

plaintiff must allege facts which, if true, establish that the

plaintiff (1) had a property interest of constitutional

magnitude and (2) was deprived of that property interest without

due process of law.” Clukey v. Town of Camden,

, 55-

56 (1st Cir. 2013) (citing García–Rubiera v. Fortuño,

(1st Cir. 2011)). The court has no trouble concluding

that in this case, M.J. had a property interest of

constitutional magnitude. As Judge Muirhead explained in a case

in which parents challenged their son’s expulsion from school:

when a state elects to provide free education to all youths, as in New Hampshire, the state is “constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.

Johnson v. Collins,

(D.N.H. 2002)

(quoting Goss,

).

The problem with plaintiffs’ procedural due-process claim

is that they have not adequately alleged a deprivation of M.J.’s

right to a public education. As Judge Muirhead’s decision in

Johnson suggests, the typical procedural due-process claim in

the educational setting involves a challenge to a decision to

suspend or expel a student, and the constitutional violation

occurs when such a decision is made without giving the student

16 sufficient process before imposing discipline. See Johnson,

; see also Goss,

.

Here, however, plaintiffs do not allege that Fitzpatrick

made any decision that limited M.J.’s right to attend PMHS. To

be sure, they allege that some of Fitzpatrick’s actions and/or

his failures to act resulted in making PMHS unpleasant for M.J.

But, still, it cannot reasonably be argued that, for example,

M.J. had a constitutional right to notice and a hearing every

time Fitzpatrick made a decision regarding Coach Noyes’s

continued employment as PMHS’s baseball coach. In other words,

M.J.’s right to a public education did not extend so far as to

give him a property interest in PMHS’s personnel decisions, and

retaining (or not discharging) Coach Noyes did not deprive M.J.

of his right to a public education. As for the way in which

Fitzpatrick handled their complaints, plaintiffs themselves

allege that Fitzpatrick met with them on several occasions. See

First Am. Compl. ¶¶ 34, 44-45. Thus, when plaintiffs charge

Fitzpatrick with ignoring their complaints, which might,

possibly, implicate M.J.’s right to procedural due process,

their real concern is the content of Fitzpatrick’s responses to

their complaints, i.e., the way he handled them substantively,

not the way he handled them procedurally. The constitutional

right to due process protects a person’s right to be heard, but

17 does not guarantee a right to any particular outcome once he or

she has been heard. Because plaintiffs do not adequately allege

a deprivation of a constitutionally protected property interest,

Fitzpatrick is entitled to dismissal of the procedural due-

process claim asserted against him.

2. The School District

Because plaintiffs have failed to state a substantive due-

process claim against Fitzpatrick, the School District is also

entitled to dismissal of plaintiffs’ substantive due-process

claim. See Gianfrancesco,

n.9.

D. Count VXII: Invasion of Privacy

In Count XVII, the Johnsons claim that “agents of the . . .

school district disseminated private and confidential

information about . . . M.J. to the School Board, or school

board members, or others.” First Am. Compl. (doc. no. 38) ¶

246. While this claim appears to be based upon state tort law,

see id. ¶ 245, the complaint also states that the “information

[that was] disseminated may be protected under The Family

Educational Rights and Privacy Act (‘FERPA’) 20 U.S.C. § 1232g,”

id. ¶ 247. To the extent that plaintiffs are attempting to

bring a claim under FERPA, that claim is necessarily dismissed

because “FERPA does not confer a private right of action[.]”

18 Frazier v. Fairhaven Sch. Comm.,

(1st Cir.

2002).

E. Counts IV-XVII: State Causes of Action

Given the foregoing disposition of all the federal claims

in this case, nothing remains but plaintiffs’ supplemental

state-law claims. “When federal claims are dismissed before

trial, state claims are normally dismissed as well.” McInnis-

Misenor v. Me. Med. Ctr.,

(1st Cir. 2003)

(citing Camelio v. Am. Fed’n,

(1st Cir.

1998)); see also Rodriguez v. Doral Mortg. Corp.,

(1st Cir. 1995)). As the court can discern no reason for

departing from the general rule stated above, Counts IV-XVI and

the state claim asserted in Count XVII are all dismissed.

Conclusion

For the reasons detailed above, Fitzpatrick and the School

District are entitled to dismissal of all the federal claims

asserted in Counts I-III and XVII, and the court declines to

exercise supplemental jurisdiction over plaintiffs’ state-law

claims. Therefore, the motion to dismiss filed by Fitzpatrick

and the School District, document no. 28, is granted, and

Primex3’s motions to dismiss, document nos. 44 and 52, are denied

as moot. Finally, as plaintiffs have had an ample opportunity

19 to amend their complaint, and significant guidance regarding how

to do so, see Order (doc. no. 14) 5-9, their first amended

complaint, document no. 38, is dismissed with prejudice.

Accordingly, the clerk of the court shall close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 9, 2014

cc: Andrew D. Dunn, Esq. Dona Feeney, Esq. Keith Mathews, Esq. John F. Skinner, III, Esq. Katherine E. Spillane, Esq.

20