UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

B.A. Individually, and as Parent and Next Friend of Minor Child, J.F.

v. Civil No. 15-cv-433-JD Opinion No.

Manchester School District SAU 37 and Donna M. Varney

O R D E R

B.A. brought suit in state court on her own behalf and on

behalf of her minor and disabled son, J.F., alleging federal and

state claims against the Manchester School District and a former

teacher in the school district, Donna M. Varney. The defendants

removed the case to this court. Varney moves for summary

judgment on Counts I and X. B.A. objects to summary judgment on

Count I, with clarification of her claim, but does not object to

summary judgment on Count X.

Varney requested oral argument on her motion for summary

judgment. In support, Varney states only that “[o]ral argument

will assist the Court in analyzing the parties’ arguments and in

applying the evidence obtained in discovery to those arguments.”

Varney’s general statement does not explain specifically what

assistance oral argument would provide in this case to take it

outside the general rule that motions will be decided without oral argument. LR 7.1(d). Therefore, the motion was decided

without oral argument.

Standard of Review

Summary judgment is appropriate when the moving party

“shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party

and a material fact is one that could affect the outcome of the

case.” Flood v. Bank of Am. Corp.,

(1st Cir.

2015). The facts and reasonable inferences are taken in the

light most favorable to the nonmoving party. McGunigle v. City

of Quincy,

(1st Cir. 2016). “On issues where

the movant does not have the burden of proof at trial, the

movant can succeed on summary judgment by showing ‘that there is

an absence of evidence to support the nonmoving party's case.’”

OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of

Canada,

(1st Cir. 2012) (quoting Celotex Corp.

v. Catrett,

(1986)).

Background

J.F. was eight years old when he was assigned to Donna

Varney’s special education classroom for the 2012-2013 school

year at Jewett Street School in Manchester. The students in the

2 classroom had various disabilities that precluded them from

being integrated into the school’s general population.1 The

classroom also had two teaching assistants, Alicia Otis and

Brianne Corey.

Varney was a full-time special education teacher at the

Jewett Street School. She was certified in special education

and early childhood education.

Because of intrauterine exposure to a virus, J.F. was born

with weakness on the entire right side of his body, difficulty

with swallowing, and cerebral palsy. He also developed a

seizure disorder. When he was five years old, he was diagnosed

with a significant Pervasive Developmental Delay and was

identified as being on the autism spectrum. He has a limited

ability to express himself through language.

J.F.’s impairment in the ability to chew and swallow causes

him to be at risk of choking and aspiration. J.F. also has

muscle issues that make it difficult for him to walk and to

coordinate other functions such as eating. His difficulties

with eating make him a slow and picky eater, and he has cycles

of better and poorer eating habits.

Since J.F. began to attend school in Manchester in 2007,

his Individualized Educational Plans (“IEPs”) have provided that

1 B.A. states that there were seven children in the classroom, while Varney states that there were eight.

3 he needed to be watched during eating because he could choke or

gag on food. Varney received all of J.F.’s school records

before the first day of school in August of 2012 and read the

records, including records that explained that J.F. was

medically fragile and had eating problems. From that

information, Varney knew that J.F. was at risk for choking and

gagging and that he was weak and unsteady on his feet.

J.F. had a seizure on the first day of school, and his

mother came to get him. He was absent for a week after that

incident. Early in September, Varney saw J.F. choke on a

cracker and realized that he needed more time to eat because of

the risk of choking. J.F. was absent again later in September

because he had stopped eating and drinking.

During a meeting in September with J.F.’s mother and

pediatrician, Varney heard that J.F. could choke or over stuff

his mouth while eating. There was no discussion of techniques

for getting J.F. to eat more. Varney knew that J.F. could feed

himself and could clean up after eating. She also knew that she

was not responsible for getting J.F. to eat more or to keep food

in his mouth. She knew that there was nothing in J.F.’s IEP

that required use of feeding techniques.

J.F. and other students in the class ate a snack at 10:00

a.m. and ate again at noon. Alicia Otis, one of the assistant

teachers in the classroom, saw Varney force feed J.F. five or

4 more times between September of 2012 and January of 2013.

Brianne Corey, the other assistant teacher, also saw Varney

force feed J.F. Varney would force J.F.’s mouth open with her

hands and force food into J.F.’s mouth. J.F. would be crying

and screaming during this procedure. When J.F. tried to spit

out the food, Varney covered his mouth with her hand until he

swallowed. Varney later admitted to the Manchester police that

her force feeding of J.F. was inappropriate.

Otis was concerned that Varney’s roughness would cause J.F.

to have a seizure. J.F. would try to rock himself to sleep to

avoid the abuse. The force feeding incidents so exhausted J.F.

that he would put his head on the desk afterwards and sleep.

In addition to the force feeding, Varney forced J.F. to

stand up during lunch if he refused to eat. These incidents

occurred more frequently than the force feeding, approximately

three or four days of each school week. Varney would push on

J.F.’s back to get him to stand and would then take his chair

away. J.F. reacted with rocking or falling asleep or falling on

the floor and screaming and crying.

Varney also frequently yelled at J.F. to get him to eat.

Otis believed Varney yelled at J.F. to scare him into eating and

to show him that she was in charge. Other staff members at the

Jewett Street School heard Varney yelling and asked Otis about

5 it. During the fall, Otis and Corey discussed their

disagreement with Varney’s tactics and what to do about it.

Another teacher complained to the principal that Varney was

overwhelmed and did not have control of her classroom. The

school nurse had heard Varney yell at her students the year

before and complained to the principal about Varney’s behavior.

The school nurse continued to notice Varney’s unkind behavior

with her students during the 2012 to 2013 school year and

complained to the principal that Varney was yelling at J.F. to

get him to eat. Corey noted that Varney’s yelling was so loud

it could be heard through the walls.

J.F. became withdrawn during the 2012-2013 school year and

did not act like himself. He resisted going to school. He also

developed an aversion to food and would scream and turn away

when his mother approached with food. He was hospitalized in

September of 2012 because of a lack of food.

J.F. was treated by physicians and behavioral specialists

to determine why his behavior had changed and why he would not

eat or drink. Neither J.F.’s mother nor any of his health

providers knew about Varney’s force feeding and other conduct.

Because of the eating problems, J.F. had a feeding tube

surgically inserted at the end of January of 2013. Varney

continued to attempt to force feed J.F. even after the feeding

tube was inserted.

6 In April of 2013, Varney was suspended pending an

investigation of her conduct with another student in her

classroom. The Manchester police were involved in the

investigation, and Varney was eventually charged with simple

assault based on her conduct with the other student. The

Manchester police told J.F.’s mother about the force feeding

incidents with J.F. During her deposition in this case, Varney

invoked the protection of the Fifth Amendment when asked about

her treatment of J.F.

J.F.’s doctor believes that the force feeding caused J.F.’s

aversion to eating. Joseph Shrand, M.D., a board certified

child and adolescent psychiatrist, has provided his opinion that

J.F.’s change in eating patterns was the result of Varney’s

treatment of him. Dr. Shrand also concludes that Varney’s

treatment caused J.F. to have post-traumatic stress disorder.

Dennis C. Tanner, Ph.D., an expert in speech and swallowing,

concluded that Varney’s treatment of J.F. caused the increase in

severity of J.F.’s eating and swallowing problems. J.F. is

expected to require the feeding tube for the rest of his life.

Discussion

Because B.A. does not object to summary judgment on her

claim in Count X, that claim is dismissed. Varney also moves

for summary judgment on B.A.’s civil rights claims in Count I.

7 In support, Varney contends that B.A. cannot prove a violation

of either substantive or procedural due process and cannot base

claims brought pursuant to

on the Individuals

with Disabilities Education Act (“IDEA”), the Rehabilitation

Act, or the Americans with Disabilities Act (“ADA”).

In response, B.A. explains that she did not bring claims in

Count I arising from the IDEA, the Rehabilitation Act, or the

ADA. Those claims are brought in other counts against the

school district. B.A. does object to summary judgment on her

claims in Count I that Varney violated J.F.’s substantive and

procedural due process rights in the actions she took to force

J.F. to eat.

A. Substantive Due Process

To prove a substantive due process claim, a plaintiff must

show that he “suffered the deprivation of an established life,

liberty, or property interest, and that such deprivation

occurred through governmental action that shocks the

conscience.” Najas Realty, LLC v. Seekonk Water Dist.,

(1st Cir. 2016) (internal quotation marks omitted).

The defendant’s actions “must be ‘so egregious, so outrageous,

that it may fairly be said to shock the contemporary

conscience.’” Irish v. Maine,

(1st Cir. 2017)

(quoting City of Sacramento v. Lewis,

, 847 n.8

8 (1998)). In circumstances where the defendant had “an

opportunity to reflect and make reasoned and rational decisions,

deliberately indifferent behavior may suffice” to meet the

standard for a substantive due process violation.

(internal

quotation marks omitted).

Varney contends that her conduct, as a matter of law, does

not meet the standard required for a substantive due process

violation. In support, she cites cases in which teachers

mistreated students in a variety of ways, and courts found no

substantive due process violation. Those cases also found that

the plaintiff did not suffer sufficient harm to support a

substantive due process claim.

In this case, however, B.A. has provided expert opinions to

support the level of harm she asserts J.F. has suffered as a

result of Varney’s force feeding and other actions related to

eating. Based on that evidence, which is not contradicted by

Varney, B.A. raises a factual issue as to whether Varney caused

J.F.’s eating aversion, which required insertion of a feeding

tube. He will need the feeding tube for the rest of his life.

In addition, the expert’s opinions are that Varney’s actions

caused J.F. to have serious psychological injury, including

post-traumatic stress disorder. Therefore, the record in this

case supports a level of injury sufficient to support the

substantive due process claim.

9 Varney also contends that her actions were not the brutal

and inhumane conduct that would shock the conscience. The court

disagrees.

Varney force fed a disabled child who was at risk of

choking, gagging, and seizures; forced him to stand to eat when

his physical disabilities made that difficult; and yelled at him

to force him to eat. Varney’s actions caused J.F. to scream and

cry and frightened him to the point that he would try to fall

asleep to avoid her. According to the experts, Varney’s actions

caused serious and lasting physical and psychological harm.

Those actions could be conscience shocking within the

prohibition of the Fourteenth Amendment.

B. Procedural Due Process

The Fourteenth Amendment protects against the deprivation

of life, liberty, or property without the due process of law.

U.S. Const. amend. XIV, § 1. To establish a procedural due

process claim under § 1983, a plaintiff must prove that she “(1)

had a property interest of constitutional magnitude and (2) was

deprived of that property interest without due process of law.”

Miller v. Town of Wenham,

(1st Cir. 2016). The

Due Process Clause requires “certain procedures, such as notice

and a hearing, by which an individual can prove a substantive

10 entitlement to (or defend against a deprivation of) property.”

Nelson v. Colorado,

(2017).

The parties agree that J.F. had a protected property

interest in receiving a free and appropriate public education.

Varney contends that B.A. cannot show that Varney deprived J.F.

of the right to a free and appropriate public education without

due process. In response, B.A. contends that Varney’s conduct

caused J.F. to miss school for treatment of the food aversion,

which Varney caused, and to miss school for the surgical implant

of the feeding tube. B.A. contends that Varney’s conduct in

causing those problems was arbitrary but does not explain what

process was due before or after Varney acted as she did.

In other words, procedural due process claims address the

means the defendant should have taken, but did not take, to

protect the plaintiff’s property interest either before

deprivation or after deprivation. For example, a student is

entitled to due process either before or after being suspended

from school. Goss v. Lopez,

(1975). The

process due depends on the extent of the student’s educational

deprivation, which for a ten-day suspension would be effective

notice and an informal hearing.

Here, however, assuming that Varney’s conduct caused J.F.

to miss school, she did not suspend J.F. or take any direct

action to prevent him from attending school. As such, B.A. has

11 not shown that Varney took action that would trigger due process

rights. In other words, there was no opportunity for notice or

a hearing, and those concepts are not relevant to the reasons

J.F. missed school. Therefore, B.A. has not articulated a

cognizable procedural due process claim.

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 19) is granted as to Count X and

the procedural due process claim in Count I, but is denied as to

the substantive due process claim in Count I. As modified on

summary judgment, Count I brings only a claim for violation of

substantive due process.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

June 14, 2017

cc: Erin J. M. Alarcon, Esq. Mark S. Bodner, Esq. Keith F. Diaz, Esq. Robert J. Meagher, Esq. Michael B. O’Shaughnessy, Esq. James G. Walker, Esq.

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