UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

T.F. and W.M. by p/n/f Ashley M. and Kevin M.

v. Civil No. 16-cv-37-JL Opinion No.

Spaulding Youth Center, Colleen Sliva, Auburn School District, School Administrative Unit 15, and Anne McSweeney

MEMORANDUM ORDER

This case implicates a school’s and school district’s

duties to protect children from and notify parents of intra-

student sexual harassment. Ashley M. and Kevin M. brought this

action on their own behalf, as well as on behalf of their minor

children, T.F. and W.M., after learning that T.F. was sexually

harassed by another student while attending Spaulding Youth

Center as part of an agreement with the Auburn School District.1

The plaintiffs contend that the defendants’ actions -- or

inaction -- violated Title IX of the Education Amendments of

1 Plaintiffs in this action have sued two sets of actors: (1) defendant Spaulding Youth Center and its Principal and Director of Special Education, Colleen Sliva (collectively “the Spaulding defendants”); and (2) Auburn School District (“Auburn”), School Administrative Unit 15 (“SAU 15”), and Anne McSweeney, Director of Student Services at the Auburn Village School (collectively “the Auburn defendants”). 1972,

et seq.,2 deprived T.F. of his right to

equal access to education giving rise to a claim under

, and violated duties allegedly owed by various defendants

to various of the plaintiffs under several related theories of

negligence. This court has jurisdiction over this matter under

(federal question), 1343 (civil rights),

and 1367 (supplemental jurisdiction).

The defendants moved to dismiss several of the plaintiffs’

claims. See Fed. R. Civ. P. 12(b)(6). The plaintiffs amended

their complaint as of right in response, see Fed. R. Civ. P. 15,

prompting the defendants to renew their motions to dismiss. The

plaintiffs subsequently withdrew several of their negligence3

claims and moved to amend their complaint a second time, this

time to remove the withdrawn claims and add factual allegations

2 The Education Amendments of 1972 amended the Higher Education Act of 1965, the Vocational Education Act of 1963, the General Education Provisions Act, and the Elementary and Secondary Education Act of 1965. See Education Amendments of 1972,

Stat. 235 (1972). 3 Specifically, T.F.’s negligence claim against Auburn and SAU 15 (count 8), W.M.’s negligence claims (counts 9 and 10), Ashley’s and Kevin’s negligence claim against Auburn and SAU (count 12), and Ashley’s claims for negligent infliction of emotional distress (counts 13 and 14). See document no. 42. The defendants have not moved to dismiss T.F.’s Title IX claims against Spaulding, Auburn, and SAU 15 (counts 1-2), T.F.’s § 1983 claims against the Auburn defendants (counts 5-6), or T.F.’s claim for negligence against the Spaulding defendants (count 7).

2 in support of the plaintiffs’ negligence claims against

McSweeney. For the reasons discussed more fully infra Part IV,

the court denies that motion.

In their First Amended Complaint, the plaintiffs assert a

variety of claims, only five of which remain subject to

defendants’ motions to dismiss. Specifically, the various

defendants move to dismiss T.F.’s § 1983 claims against the

Spaulding defendants (counts 3 and 4); T.F.’s negligence claim

against McSweeney (count 8); and Ashley’s and Kevin’s negligence

claims against McSweeney and the Spaulding defendants (counts 9

and 10).4 Having heard oral argument, the court grants the

defendants’ motions as to Ashley’s and Kevin’s negligence claims

and denies them as to the rest.

Applicable legal standard

In analyzing a complaint in the Rule 12(b)(6) context, the

court accepts as true all well-pleaded facts set forth in the

complaint and draws all reasonable inferences in the plaintiff’s

favor. See, e.g., Martino v. Forward Air, Inc.,

, 2

4 The First Amended Complaint contains two each of counts numbered 9 through 12. The plaintiffs voluntarily dismissed the other “count 9” and “count 10.” To be clear, however, as a result of this order, only counts 1 through 8 remain in plaintiffs’ First Amended Complaint. All other counts are dismissed, voluntarily or otherwise.

3 (1st Cir. 2010). The complaint, read in that light, must

include “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Martinez v. Petrenko,

(1st Cir. 2015) (quoting Ashcroft v. Iqbal,

(2009)). With the facts drawn in this manner, “questions of law

[are] ripe for resolution at the pleadings stage.” Simmons v.

Galvin,

(1st Cir. 2009).

Background

This case arises from events that occurred while T.F., a

minor, attended Spaulding between May 2013 and June 2015. T.F.

has educational disabilities defined under the Individuals with

Disabilities Education Improvement Act,

, et

seq., as autism, emotional disturbance, and “other health

impaired.” Prior to his arrival at Spaulding, he underwent a

series of psychiatric hospitalizations after he engaged in

physically aggressive and sexualized behaviors. Toward the end

of May 2013, T.F.’s individualized education plan (“IEP”) team

determined that those behavioral issues made a residential

placement appropriate for T.F., and arranged for him to enter

the residential program at Spaulding. He remained in

residential treatment from May 2013 until June 2014, when he

transferred to the day program at Spaulding.

4 Shortly thereafter, the plaintiffs allege, T.F. began

engaging in aggressive behavior at home. Though Auburn arranged

for Spaulding to provide in-home services from a licensed social

worker to T.F. at home for a period of time, his IEP team

decided to terminate those services in November 2014.5 During

that period, T.F. continued to engage in sexualized behaviors.

While T.F. attended the day program at Spaulding, a female

student there began to interact with him in a sexual manner. On

March 6, 2015, T.F. described some of that behavior to staff

members at Spaulding, including that the female student spoke

crudely to him, had grabbed his buttocks at one time, and had

stuck out her chest while saying, “I know what you are looking

at,” and told him to “start sucking.” First Amended Compl.

¶¶ 37-38. T.F. expressed discomfort with this behavior, and

told Spaulding staff that he felt uncomfortable, even

frightened, around this student as a result. Id. ¶¶ 37-39.

T.F. continued to report encounters with this student to

various Spaulding staff members between March 6 and May 27,

2015. According to T.F., the student attempted to hug him,

remain near him, “ma[de] comments to him,” breathed heavily and

5 Thereafter, and for the duration of the period relevant to this action, Auburn provided an hour per week of services with a behavioral analyst.

5 panted near the back of his neck as she walked past him,

followed him around, and “creep[ed] him out.” Id. ¶¶ 40-46.

More than once, he expressed fear at the idea of attending

school because of this activity and concern that the staff

failed to acknowledge the student’s behavior and did nothing to

intervene. Id. ¶¶ 39-42.

In this timeframe, T.F.’s IEP team met at least thrice to

discuss his progress and future placement. Id. ¶¶ 43, 45, 47.

At a meeting on March 20, 2015, the team determined that he no

longer required a placement at Spaulding and that another

educational venue would suit his needs for the 2016-2017

schoolyear. Id. ¶¶ 43. The plaintiffs allege that the team did

not discuss the female student’s behavior toward T.F. at any of

those meetings, id. ¶¶ 43, 45, 47, and did not notify T.F.’s

parents of those incidents, id. ¶¶ 43, 45. The plaintiffs

further allege that the report provided to Auburn and T.F.’s

parents upon his discharge from Spaulding on June 26, 2015,

lacked any mention of the female student’s behavior toward T.F.

or his discussions of those incidents with his counselor. Id.

¶ 48.

On September 30, 2015, several months later and after T.F.

began the 2016-2017 school year at a new school, Ashley

discovered that T.F. had sexually assaulted his younger sister,

6 W.M. on at least one occasion. T.F. was hospitalized and, upon

his release in October, went to live with his grandparents in

another state. Only in late October 2015, after Ashley

requested T.F.’s records from Spaulding, the plaintiffs allege,

did she and Kevin receive notice from the school about the

incidents between T.F. and the female student. Ashley forwarded

T.F.’s records to the New Hampshire Department of Children,

Youth, and Families. DCYF opened an investigation and

interviewed T.F., who disclosed that the female student sexually

assaulted him at Spaulding. See id. ¶¶ 69-70.

Auburn conducted a psycho-sexual evaluation of T.F. On the

basis of that examination, Ashley and Kevin unilaterally placed

T.F. in a residential school that specializes in educating

students who have engaged in sexualized behaviors. The

plaintiffs then filed this action on April 22, 2016, seeking to

recover from the Auburn and Spaulding defendants for violations

of Title IX, a deprivation of rights under § 1983, and common

law negligence. The plaintiffs have withdrawn certain of their

claims, as discussed supra, and the defendants have moved to

dismiss the plaintiffs’ § 1983 claims against the Spaulding

defendants and three of the plaintiffs’ negligence claims.

7 Analysis

The defendants have moved to dismiss negligence claims

brought on behalf of plaintiffs Ashley and Kevin against the

Spaulding defendants and McSweeney.6 Plaintiffs base these

claims on those defendants’ alleged failure to inform them of

the harassment T.F. endured at Spaulding. Had the defendants so

notified them, they would have been able to act as the

children’s parents to protect both T.F. and W.M. The lack of

such a warning prevented them from taking action and, as a

result, Ashley and Kevin allege that “they suffered and will

continue to suffer severe emotional distress because they had to

observe the physical, physiological and psychological

deterioration of” their children. First Amended Compl. ¶¶ 193-

194, 211-212.

To satisfy the familiar elements of a negligence claim,7 the

plaintiff must “establish that the defendant owed a duty to the

6 Minor plaintiff T.F.’s separate claims for negligence against these defendants remain unchallenged. 7 The defendants argue that Ashley and Kevin, by pleading only emotional distress damages, seek recovery for negligent infliction of emotional distress rather than traditional negligence. See Auburn Mot. to Dismiss (document no. 17-1) at 13-15; Spaulding Mot. to Dismiss (document no. 15-1) at 9-11. Though the line is somewhat blurred, New Hampshire law appears to contemplate that plaintiffs can “recover for emotional distress under a traditional negligence theory,” though they must “demonstrate physical symptoms of their distress” to do so. O'Donnell v. HCA Health Servs. of New Hampshire, Inc.,

8 plaintiff, breached that duty, and that the breach proximately

caused the claimed injury.” Estate of Joshua T. v. State,

(2003) (quotations and citations omitted). The

defendants take aim at the first element, arguing that the

plaintiffs have failed to allege that the Spaulding defendants

and McSweeney owed any cognizable legal duty to T.F.’s parents,

as opposed to T.F. himself. “Absent a duty, there is no

negligence.” Walls v. Oxford Mgmt. Co.,

(1993). The plaintiffs counter that the defendants owed a duty

-- not only to T.F. himself, but to his parents -- to inform

them of harassment T.F. endured at school.

“Whether a duty exists in a particular case is a question

of law.” Walls,

. “As a general rule, a person

has no affirmative duty to aid or protect another,” though

“[s]uch a duty may arise . . . if a special relationship

exists.” Marquay v. Eno,

(1995). Relevant to

the plaintiffs’ claims here, New Hampshire recognizes that

“[s]chools share a special relationship with students entrusted

608, 611 (2005). As the plaintiffs have disavowed any claim for negligent infliction of emotional distress by Ashley or Kevin, the court considers their claims as brought under traditional negligence theory. See Obj. to Spaulding Mot. to Dismiss (document no. 21-1) at 14; Obj. to Auburn Mot. to Dismiss (document no. 22-1) at 16; Notice of Voluntary Withdrawal (document no. 42).

9 to their care, which imposes upon them certain duties of

reasonable supervision.”

. The duty of “those school

employees who have supervisory responsibility over students” to

supervise those students flows from the idea that mandatory

“[s]chool attendance impairs both the ability of students to

protect themselves and the ability of their parents to protect

them.”

The plaintiffs argue that by grounding the school’s duty of

supervision in the school’s in loco parentis status, the New

Hampshire Supreme Court has “opened the door” for recognition of

“a duty to warn or notify parents of issues concerning their

children at school.” Obj. to Spaulding Mot. to Dismiss

(document no. 21-1) at 13. Plaintiffs note several decisions

from other jurisdictions recognizing such a duty. See, e.g.,

Phyllis v. Superior Court,

(1996);

Parents No. 1 v. State Dep’t of Educ.,

(2002)

(recognizing “special relationship” between school and student’s

parents).

This court, which has its own duty under these

circumstances “to predict how [the New Hampshire Supreme Court]

would likely decide the question,” Butler v. Balolia,

(1st Cir. 2013), does not share the plaintiffs’ view.

Since recognizing “that a special relationship exists between

10 schools and the students in their care so as to impose upon

schools ‘certain duties of reasonable supervision,’” Gauthier v.

Manchester Sch. Dist.,

(2015) (quoting

Marquay,

), the New Hampshire Supreme Court has

carefully circumscribed that duty, limiting it “to only those

periods of time when parental protection is compromised, and

only to those risks that are reasonably foreseeable.” Mikell v.

Sch. Admin. Unit No. 33,

(2009) (finding

school had no duty to prevent student’s suicide). Particularly

relevant to these claims, it has declined to recognize this

special relationship as extending so far as to invest in the

school a duty -- owed to the student -- to report incidents of

bullying to the bullied student’s parent. Gauthier,

.

To the extent that this line of cases has indeed opened a

door -- and this court is skeptical that it has, in light of

Mikell and Gauthier -- it would appear to be a door leading to

recognition that the school owed a duty to the student to inform

the parents of events occurring while the student was in the

school’s custody, not a duty owed to the parents to do the same.

Such a duty must still be grounded in a “special relationship”

between the parties, and the only “special relationship” that

New Hampshire law recognizes in this context is that between the

11 school and the student. See Gauthier,

-49. Insofar

as the New Hampshire Supreme Court has declined to recognize a

school’s duty to a student to notify parents of instances of

bullying despite recognizing a special relationship between

schools and students, see

it seems unlikely that the Court

would recognize such a duty owed to the parents when it has not

recognized a special relationship between schools and students’

parents.

Having concluded that the absence of a legally cognizable

duty owed by the Spaulding defendants or McSweeney to Ashley and

Kevin precludes recovery under a negligence theory, the court

grants the various defendants’ motions to dismiss Ashley and

Kevin’s negligence claims (counts 11 and 12). The court

declines, however, to dismiss T.F.’s § 1983 claims against the

Spaulding defendants or T.F.’s negligence claim against

McSweeney at this time. These fact-specific inquiries are

better resolved in a different procedural context.8

Plaintiffs’ motion to amend the complaint

As discussed supra, during the pendency of defendants’

motions to dismiss several counts of the plaintiffs’ First

Amended Complaint, the plaintiffs moved to amend their complaint

8 See, e.g., Fed. R. Civ. P. 56; id. Rule 50.

12 a second time. The court’s order of May 25, 2016 set a June 1,

2016 deadline for plaintiffs to amend their complaint. See

document no. 11 at 5; document no. 26. Where, as here, the

court has issued a scheduling order, the court evaluates the

plaintiffs’ request to amend its complaint outside of the

deadline set by that order under the Rule 16 “good cause”

standard.9 Fed. R. Civ. P. 16(b)(4); United States ex rel

D’Agostino v. EV3, Inc.,

(1st. Cir. 2015).

“This standard focuses on the diligence (or lack thereof) of the

moving party more than it does on any prejudice to the party-

opponent.” Steir v. Girl Scouts of the USA,

(1st

Cir. 2004).

The plaintiffs propose amendments to the complaint that,

they suggest, would bolster their negligence claims against

McSweeney. See Mot. to Amend Complaint (document no. 43) at 1.

The Auburn defendants concede, however, that the plaintiffs’

First Amended Complaint contains the allegation that McSweeney

acted in bad faith and that the plaintiffs can use evidence,

newly-acquired in discovery, in an effort to prove that

9 Not, as the plaintiffs and Spaulding defendants suggest, under Rule 15’s requirement that courts should “freely give leave when justice so requires.” See Mot. to Amend Complaint (document no. 43-1) at 6; Spaulding Defs. Obj. to Mot. to Amend (document no. 45) at 1-2.

13 allegation regardless of whether those facts are recited in the

complaint. See Auburn Defs. Obj. to Mot. to Amend (document

no. 46-1) at 8-9. As discussed supra Part III, the court denies

the Auburn defendants’ motion to dismiss T.F.’s negligence claim

against McSweeney. None of the newly alleged facts would alter

the court’s conclusion that New Hampshire law does not, at this

time, recognize that the school district owed a duty to T.F.’s

parents to notify them of his harassment complaints.

Accordingly, plaintiffs’ motion to amend their complaint is

denied as futile and for failure to demonstrate good cause.

Conclusion

For the reasons set forth above, the defendants’ motions to

dismiss are GRANTED IN PART and DENIED IN PART. Specifically,

the Spaulding defendants’ motion10 is DENIED as to the

plaintiffs’ § 1983 claims (counts 3 and 4) and GRANTED as to

Ashley’s and Kevin’s negligence claim (count 9). The Auburn

defendants’ motion11 is DENIED as to T.F.’s negligence claim

against McSweeney (count 8) and GRANTED as to Ashley’s and

Kevin’s negligence claim (count 10).

10 Document no. 15. 11 Document no. 17.

14 The plaintiffs’ motion for leave to file a second amended

complaint12 is DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 29, 2016

cc: Karen E. Hewes, Esq. Courtney H.G. Herz, Esq. Megan C. Carrier, Esq. Dona Feeney, Esq.

12 Document no. 43.

15