Doe v. Torrington Board Of Education et al

Filing 159

ORDER. For the reasons stated in the attached, Plaintiff's 142 motion for sanctions is DENIED and Defendants' 137 motion for summary judgment is DENIED. Plaintiff's 153 motion to seal exhibits is GRANTED.The joint trial m emorandum is due in 45 days. However, should the parties jointly file a statement, within the next 14 days, in which they certify that (1) counsel have conferred with their clients and each other, (2) the parties wish to proceed to mediation, (3) th e parties are willing to participate in settlement efforts at such mediation in good faith, and (4) counsel believe that mediation stands at least a reasonable chance of resolving the case without trial, the Court will refer the case for mediation and postpone the deadline for filing the joint trial memorandum until 45 days after the conclusion of the mediation (should it be unsuccessful). Signed by Judge Michael P. Shea on 9/20/2018. (Guevremont, Nathan)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOHN DOE,
Plaintiff,

No. 3:15-cv-452 (MPS)

v.
TORRINGTON BOARD OF EDUCATION,
CHERYL KLOCZKO, JOANNE CREEDON,
CHARLES
MCSPIRIT,
DANIEL
DUNAJ,
JOHANNA DEZURIK, GERARD CARBONE, and
MICHAEL MCKENNA,
Defendants.

RULING ON MOTIONS FOR SUMMARY JUDGMENT AND SANCTIONS
Plaintiff John Doe brought this action as a result of bullying, assaults, and sexualized
hazing he alleges that he experienced while he was a special education student at Torrington High
School. He sued the Torrington Board of Education (“the Board”), former Superintendent of
Schools Cheryl Kloczko, former principal Joanne Creedon, former vice principal Charles
McSpiritt, football coach Daniel Dunaj, guidance counselor Johanna DeZurik, special education
case manager Gerard Carbone, athletic director Michael McKenna, and social worker James
Dziekan (“Defendants”). Doe claims that the Defendants failed to comply with their duties to
protect him by allowing a culture of bullying and sexualized hazing to proliferate at the school,
and in particular on the football team, and failing to adequately respond when he became a repeated
target for abuse.
The Board, Kloczko, Creedon, McSpiritt, DeZurik, Carbone, and Dziekan (“the
Administrative Defendants”) move for summary judgment with respect to the remaining claims
against them: negligence (Count Two), negligent hiring, retention, and supervision (Count Three),

1

and negligent infliction of emotional distress (Count Five).1 The Administrative Defendants argue
that the doctrine of sovereign immunity bars Doe’s claims. They also argue that they are immune
from liability under a state statute governing suits against school officials related to bullying and
under statutory and common law governmental immunity for municipal actors.
Before filing a response to the Administrative Defendants’ motion for summary judgment,
Doe filed a motion for sanctions against all Defendants except Michael McKenna pursuant to Fed.
R. Civ. P. 37. Doe argues that (1) the Defendant Board of Education failed to produce a witness
who was adequately prepared testify under Fed. R. Civ. P. 30(b)(6); (2) the Defendants
intentionally destroyed evidence relevant to his claims; and (3) the Defendants failed to disclose
an assistant coach’s knowledge of an assault that occurred in the football locker room.
For the reasons set forth below, Doe’s motion for sanctions is DENIED and the
Administrative Defendants’ motion for summary judgment is DENIED.
I.

Factual Background
The following relevant facts, are taken from the parties’ Local Rule 56(a) Statements.
A. Bullying Incidents or Reports Involving John Doe
Plaintiff John Doe attended Torrington High School (“THS”) from August, 2011 through

April, 2013. (Defendant’s Local Rule 56(a)1 Statement of Undisputed Facts, ECF No. 138 ¶ 1)
(“56(a)1 Stmt.”).
1. The 2011–2012 School Year

1

Defendants Dunaj and McKenna have not moved for summary judgment with respect to the
remaining claims asserted against them: violation of substantive due process (Count I, against
Dunaj only); negligence (Count II); negligent hiring, retention, and supervision (Count III);
intentional infliction of emotional distress (Count IV, against Dunaj only); and negligent
infliction of emotional distress (Count V).
2

Doe joined the football team in 2011. Id. ¶ 2. He experienced several bullying incidents
during the 2011-2012 school year. In October 2011, an incident occurred in the football locker
room between Doe and another student (“Student A”), and Doe’s glasses were broken. Id. ¶ 3.
The parties dispute the severity of the incident. In his deposition Doe asserted that Student A
threw him to the ground, hit him repeatedly, and rubbed Doe’s hat on his groin. (56(a)1 Stmt. ¶
3; Plaintiff’s Local Rule 56(a)2 Statement, ECF No. 154 ¶ 35) (“56(a)2 Stmt.”) The parties agree
that Doe or his mother reported the incident to Defendant McSpiritt, who suspended Student A
and ordered him to repay the cost of the glasses. (56(a)1 Stmt. ¶ 4.) McSpiritt reported the incident
to Defendant Creedon and assured Doe and his mother that the incident would be kept
confidential. (Id. ¶ 6-7.) In his deposition, Doe stated that other students nevertheless found out
about his report to McSpiritt and retaliated against him. (56(a)2 Stmt. ¶ 36.) He stated that he
feared reporting other incidents as a result of the retaliation he faced. Id.
In either October or November 2011, a student (“Student B”) who did not attend THS at
the time tackled Doe to the ground and told him he wanted to fight. (56(a)1 Stmt. ¶ 9; 56(a)2 Stmt.
¶ 37) The incident ended when Doe indicated he would not fight. (Id.) The parties agree that Doe
did not report the incident at the time, but they dispute whether Doe’s mother reported the incident
at a meeting soon thereafter. (Id.) The parties dispute whether the Administrative Defendants had
a responsibility to supervise students at the time the incident occurred. (56(a)2 Stmt. ¶ 9.) They
also dispute whether Doe was “messing around” or wrestling before the incident occurred. (Id.)
Doe asserts that, beginning in fall 2011, he was punched daily by two students. (Id. ¶ 43;
56(a)1 Stmt. ¶ 10.) The Administrative Defendants claim that Doe did not report these assaults
until April 2013, and that McSpiritt intervened once he was aware. (56(a)1 Stmt. ¶ 10.) Doe argues
that he did report the incident before April 2013 and contends that McSpiritt’s intervention was

3

inadequate. (56(a)2 Stmt. ¶ 10.) Doe notes that the assaults occurred in public during school hours.
(Id. ¶ 10.1.) At some point in fall 2011, Doe also claims that members of the football team tricked
him into climbing into a locker and did not let him out for ten to fifteen minutes. (56(a)2 Stmt. ¶
38.)
In November 2011, Doe’s mother contacted his guidance counselor, Defendant DeZurik,
to express her concern about students bullying her son. (56(a)1 Stmt. ¶ 8.) In her deposition, Doe’s
mother stated that she specifically described the incident where Doe broke his glasses and the
incident where he was locked in the locker. (56(a)2 Stmt. ¶ 8.1.) DeZurik met with Doe, but Doe
refused to name the students. Id. Doe’s mother stated that she informed DeZurik and McSpiritt
that she and her son did not want to disclose the names of the students involved for fear of
retaliation. (Id. ¶ 8.2.) Doe asserts that his mother had a Planning and Placement Team meeting,
attended by both DeZurik and McSpiritt, where she again voiced her concerns. (Id. ¶ 8.3.) Doe’s
Individualized Education Program (IEP) does not include any notation about her concerns. (Id. ¶
8.4.)
Doe suffered a back injury in football training in January 2012. (56(a)1 Stmt. ¶ 11.) His
teammates ridiculed him, calling him “pussy” and “bitch,” which the coaches condoned. (Id.) Doe
further asserts that one coach joined in, calling him a “baby” while the head coach looked on.
(56(a)2 Stmt. ¶ 40.) The Administrative Defendants claim that Doe did not report this incident
(56(a)1 Stmt. ¶ 11). Doe argues that Defendant Kloczko made statements in her deposition
suggesting that she was aware that Doe’s mother reported the incident and that McSpiritt

4

responded to it, but cites portions of the deposition transcript not provided to the court. (56(a)2
Stmt. ¶ 11) (citing “Kloczko Dep. 284-86”).2
During a track event in Spring 2012, one student “hiked some rocks” at Doe, one of which
went down his throat. (56(a)1 Stmt. ¶ 12.) Doe asserts that his mother reported the incident in
Spring 2012, which the Administrative Defendants dispute. (56(a)2 Stmt. ¶ 12.) Doe also argues
that the Administrative Defendants had an obligation to supervise students during the event. Id.
Also in Spring 2012, Doe states that students would frequently “karate-chop” one another
on the neck. (56(a)2 Stmt. ¶ 50.) A teacher observed Doe and another student hitting each other in
this way, and each received an in school suspension. (56(a)1 ¶ 13.) Defendant Dan Dunaj forced
the entire team to run extra “gassers” because Doe had received a suspension. (56(a)2 ¶ 50.) Doe
stated in his deposition that his teammates retaliated against him, including one student who
repeatedly chopped him on the neck. (56(a)2 Stmt. ¶¶ 26, 51.)
2. The Sexual Assault
In August 2012, Doe was the victim of a serious sexual assault. Doe was playing football
with members of the football team at a municipal park. (56(a)1 Stmt. ¶ 14). Student B, who had
transferred to THS in early 2012, chased him down, tackled him, and pulled his pants down.
(56(a)2 Stmt. ¶ 12.4.) While Doe tried to pull his pants back up, Student B, inserted a straw into
his rectum. (Id.)3 The Administrative Defendants assert that the incident occurred over summer
break, entirely removed from school or football practice. (Id. ¶ 14.) Doe contends that the incident
occurred after a football practice during the football season. (56(a)2 Stmt. ¶¶ 12; 12.2–.3.) The

The last page included from Kloczko’s deposition in Doe’s record on summary
judgment is 281. (ECF No. 158-15 at 151.)
3
Student B was ultimately arrested, tried, and convicted for the assault. (56(a)1 Stmt. ¶
20.)
2

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parties agree that Doe did not disclose the assault to the Administrative Defendants until April
2013, shortly after Doe reported it to a state trooper through a mentoring program. (56(a)1 Stmt.
¶¶ 20-22.) Doe contests the Administrative Defendants’ assertion that they had no notice of the
assault before that time. (56(a)2 Stmt. ¶ 22.) He stated in his deposition that many students were
aware of the incident soon after it occurred. (Id.) Doe also argues that the Administrative
Defendants destroyed documents relating to a 2012 hazing incident that may have contained
evidence of their knowledge before April 2013. (Id.)
3. 2012–2013 School Year
In the fall of the 2012-2013 school year, Doe’s mother contacted Defendant DeZurik to
express concern over bullying in Doe’s biology class. (56(a)1 ¶ 15.) She explained that she did
not want Doe identified in any response for fear of retaliation. (Id.) DeZurik asked the biology
teacher to observe Doe’s interactions and moved his seat next to a paraprofessional. (Id.) The
Administrative Defendants claim that DeZurik stayed in touch with Doe’s mother and
grandmother throughout the year about bullying issues. (56(a)1 Stmt. ¶ 16.) Doe claims that his
mother and grandmother did remain in touch, but that the Administrative Defendants refused to
take any action because he would not name the students who bullied him. Doe also notes that
DeZurik left a voicemail on his mother’s phone indicating that the Administrative Defendants
would not take any action on the bullying because Doe would not name names. (56(a)2 Stmt. ¶
52.) Doe states that he began to miss school that fall because he feared for his physical safety and
suffered from severe anxiety over bullying. (56(a)2 ¶ 53.) His absences increased over time as his
anxiety escalated. (56(a)2 ¶ 61.)
Later that fall, Doe and his mother attended a Planning and Placement Team meeting with
DeZurik, McSpiritt, and Defendant Carbone, his special education case manager. (56(a)1 Stmt. ¶

6

17.) At the meeting, Carbone pressed Doe to name the students who were causing him problems.
(Id.) As Doe described the meeting in his deposition, Carbone “slammed his hands on the table,
like, launched himself out of the seat, and was leaning over the table. His face was, like, red, and
he was just screaming . . . .” (56(a)2 Stmt. ¶ 17.2.) Doe stated that Carbone accused him of
complaining about “phantom bullies.” (Id.). At another Planning and Placement Team meeting in
January 2013, Doe’s mother states that Defendants “DeZurik, McSpiritt, and Carbone minimized”
the verbal harassment that Doe was experiencing, calling it “banter.” (56(a)2 Stmt. ¶ 58.)
In March 2013, Doe’s mother states that she contacted Defendant Dziekan, the School
Social Worker, to inform him that Doe was still being bullied. (56(a)2 Stmt. ¶ 66.) Dziekan stated
that he had not met with Doe despite Doe’s IEP requiring that they meet at least once per week.
(Id.) Doe states that he met with Dziekan only twice. (56(a)1 ¶ 23). Doe’s mother testified that
Doe suffered another assault in the halls that month as a student shoved him and said, “What the
fuck, gay boy.” (56(a)2 ¶ 64.) She stated that she informed Defendant Carbone that Doe would not
attend school the following day because he feared for his safety. (Id. ¶ 65)
On April 1, 2013, Doe’s mother states that Doe was in resource hall and became nervous
when the paraprofessional in the room opened the blinds, allowing students in the hall to look in
(56(a)2 Stmt ¶¶ 67-68.) Doe’s mother states that the paraprofessional taunted him, called him a
“hider,” and told the other students they should write his name on the window in paint. (Id.) Doe’s
mother also states that the paraprofessional taunted him when he requested to leave early (as
permitted by his guidance counselor) to avoid other students between classes. (Id.) Later that same
day, Doe states that Student B and another student cornered him at track practice, “jacked him up”
against a fence, punched him repeatedly, and tore his shirt (56(a)2 Stmt. ¶ 69.)

7

On April 5, 2013, Doe’s mother removed him from school after Doe and his state trooper
mentor told his mother about the August 2012 sexual assault. (56(a)1 Stmt. ¶ 20.) Doe’s mother
and his state trooper mentor attended a Planning and Placement Team meeting three days later.
(Id. ¶ 21) The trooper disclosed that a serious incident had occurred in August involving Doe but
did not provide details. (Id.) At the meeting, McSpiritt was tasked with creating a safety plan for
Doe. (Id.) Doe argues that the record shows the plan was ineffective, as the next day he crossed
paths with a student that the plan should have helped him avoid. (Id.)
On April 17, 2013, a detective with the Torrington Police Department accompanied Doe,
his mother, and his grandmother to a meeting with Defendant Kloczko. (56(a)1 Stmt. ¶ 22.) At
the meeting, the detective disclosed the details of the August 2012 sexual assault. Kloczko
suggested that Doe attend Migeon Academy to assure his safety. (Id.) Doe describes Migeon
Academy as a program for students who have been expelled. (56(a)2 Stmt. ¶ 22.) The
Administrative Defendants state that students attend the program for other reasons as well. (56(a)1
Stmt. ¶ 22.)
B. Incidents Involving Third Parties
Doe points to several incidents of bullying, hazing, assault, and criminal activity committed
by members of the football team, which he contends should have put the Administrative
Defendants on notice as to the severity of the problems associated with the team:


Fall 2011 – A group of older members of the football team subjected younger
students to daily assaults, striking them repeatedly on the arms in the same way that
they struck Doe. (56(a)2 Stmt. ¶¶ 45-46.)



November 2011 – Two students on the football team were arrested for the rape of
two female students. (56(a)2 Stmt. ¶ 39.) One of the students pleaded guilty to risk
of injury to a minor with illicit sexual contact, and both students were expelled from
THS. (Id.)

8



December 2011 – Superintendent Kloczko sent Principal Creedon a memorandum
stating that Creedon had mishandled the bullying of a gay student and mandating
that THS administrators review “protocols for dealing with verbal harassment and
the physical abuse between and among students . . . .” (Id. ¶ 41.)



March 2012 – A member of the football team was charged with felony robbery for
jumping three younger boys. (56(a)2 Stmt. ¶ 48.) He was nevertheless allowed to
play football, and even won Most Valuable Player that December. Id. He reportedly
conspired to commit the robbery with three other THS football players. (Id.)



September 2012 – An athletic trainer working with the football team reported
observing a hazing incident in the football locker room where one student was
forced to choose between sucking the toes of an upper classman or having a pencil
inserted into his rectum. (56(a)2 Stmt. ¶¶ 25.05, 25.9.) Doe points to evidence that
this hazing was part of an annual initiation of the freshman quarterback. (56(a)2
Stmt. ¶¶ 32-33.)



Summer 2012 - During summer conditioning between the 2011-2012 and 20122013 school years, two students held a freshman down while Student B (the same
student who sexually assaulted Doe) covered his hands in icy-hot cream and
grabbed the freshman’s genitals. (56(a)2 Stmt. ¶ 27.2.)



February 2013 – Two members of the football team, one of whom had earlier been
arrested for felony robbery, were arrested for the sexual assault of two 13-year-old
girls. Both were expelled and later pleaded guilty. (56(a)2 ¶ 63.)

C. Procedural History
Doe filed this suit on March 27, 2015 against the Torrington Board of Education and eight
Board employees. His complaint alleged seven state law claims and seven federal claims. (ECF
No. 22.) Defendants moved to dismiss. (ECF Nos. 23, 28.) I granted defendants’ motions on March
31, 2016, holding that Doe failed to allege sufficient facts to proceed on any of his federal claims
and declining to exercise supplemental jurisdiction over his remaining state law claims. (ECF No.
75.)

9

Defendants filed a motion for reconsideration in light of new evidence the following
month. (ECF No. 79.) I granted the motion in part and allowed Doe to file a second amended
complaint with respect to one federal law claim against Daniel Dunaj. (ECF No. 90.) I also allowed
Doe to re-plead all of the state law claims over which I had previously declined to exercise
supplemental jurisdiction. (Id.)
Doe filed his second amended complaint on December 8, 2016, stating seven state law
claims against the Administrative Defendants: (1) negligence (Count Two); (2) negligent hiring,
retention, and supervision (Count Three); (3) intentional infliction of emotional distress (Count
Four); (4) negligent infliction of emotional distress (Count Five); and (5)–(7) statutory violations
based on sex and disability discrimination (Counts Six through Eight). (ECF No. 91.) Doe
subsequently withdrew Counts Six through Eight. (ECF Nos. 99 at 37; 100 at 2, n.2.) The
Administrative Defendants moved to dismiss the remaining counts, arguing that they were entitled
to governmental immunity and that Doe had failed to state a claim for relief. (ECF Nos. 96.) I
found that Doe had failed to state a claim for intentional infliction of emotional distress, but that
he had stated negligence claims against the Administrative Defendants under the identifiable
victim, imminent harm exception to governmental immunity. Discovery closed on July 30, 2017
(ECF No. 130), and the Administrative Defendants filed their answer to the surviving claims on
August 28, 2017. (ECF No. 133.) They moved for summary judgment on January 11, 2018. (ECF
No. 137.) Before responding to the Administrative Defendant’s motion, Doe filed a motion for
discovery sanctions under Fed. R. Civ. P. 37. (ECF No. 142.) He filed his opposition to the motion
for summary judgment on January 31, 2018. (ECF No. 146.)
II.

Motion for Sanctions

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Doe seeks sanctions under Fed. R. Civ. P. 37 on three grounds. First, he argues that the
Torrington Board of Education designated Cheryl Kloczko as its representative deponent under
Fed. R. Civ. P. 30(b)(6), but that she was “egregiously unprepared” to testify about the topics
included in Doe’s Notice of Rule 30(b)(6) Deposition. (ECF No. 143 at 3-9.) Second, he argues
that each defendant (except Michael McKenna) destroyed notes and documents related to Doe’s
claims. (Id. at 9-22). Finally, he claims that the Defendants failed to disclose that Nick Teodosio,
a non-party assistant coach of the football team, was aware of an assault that allegedly occurred in
the football locker room. Doe argues that the appropriate sanction for these transgressions is an
entry of default judgment in his favor. Default judgment “is a drastic remedy that should be
imposed only in extreme circumstances, . . . usually after consideration of alternative, less drastic
sanctions.” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d
Cir. 2012) (internal quotation marks omitted). If the Court refuses to grant default judgment, Doe
“reserves his right to seek adverse inferences . . . sufficient to deny defendants’ dispositive
motions, and later by the trier of fact.” Doe’s motion fails for three reasons.
A. Doe’s Motion Does Not Comply with Applicable Rules
First, Doe’s motion for sanctions does not comply with the requirements of Federal Rule
of Civil Procedure 37 or Local Rule 37(a). Federal Rule of Civil Procedure 37 requires parties to
certify that “the movant has in good faith conferred or attempted to confer with the party failing to
act” before filing a motion to compel disclosure. Fed. R. Civ. P. 37(d)(1)(B). Local Rule of Civil
Procedure 37(a) extends the meet-and-confer requirement further. It states that “[n]o motion
pursuant to Rules 26 through 37, Fed. R. Civ. P. shall be filed unless counsel making the motion
has conferred . . . with opposing counsel and discussed the discovery issues between them in detail
in a good faith effort to eliminate or reduce the area of controversy . . . .” (emphasis added).

11

Counsel for both Dunaj and the Administrative Defendants state that Doe’s counsel did not confer
about this specific issue before filing his motion. (ECF No. 145 at 2; ECF No. 146 at 3.) Doe’s
counsel makes only the vague statement that “[t]hroughout this litigation, [she] conferred with
opposing counsel and discussed discovery issues contained herein in detail . . .” and refers to other
discovery disputes resolved “with intervention by this Court.” (ECF No. 143 at 1 n.1.) She does
not certify that she discussed her motion with opposing counsel before filing. As a result, she fails
to satisfy the requirements of the Rule 37 or Local Rule 37(a).4
B. Doe Fails to Show that Defendants Destroyed Relevant Evidence After They Had
Notice of Possible Litigation
Second, Doe fails to articulate a reasonable basis for imposing sanctions for spoliation of
evidence on any defendant, with the possible exception of Defendant Kloczko. Defendant Dunaj
discarded documents in his office in “December 2012 to January 2013” (ECF No. 143 at 13), long
before any defendants had reason to believe Doe would bring a lawsuit; Defendant Creedon
disposed of her notes related to bullying at the end of each school year except in cases that she
expected would “require some further attention.” (Id. at 14-15.) Defendant Mojica denies that he
took notes related to the events in the complaint. (Id. at 16.) Defendant McSpiritt provided some
notes, but indicated that others were “lost” at some unspecified time or given to other defendants
in the case. (Id. at 16.) In short, there is nothing to suggest that any of these defendants destroyed
or disposed of notes or other documents after Doe filed his initial complaint with the Commission
on Human Rights and Opportunities (“CHRO”) on October 3, 2014. (ECF No. 143 at 11.)

4

While I use a discovery dispute procedure that does not ordinarily entail the filing of
motions, even that procedure requires a good faith certification regarding efforts to confer. See
http://ctd.uscourts.gov/sites/default/files/Discovery%20Dispute%20Instructions%20%28for%20
website%29%20-%20Revised%202.3.17.pdf
12

Moreover, most of the events for which Defendants failed to preserve notes related to instances of
bullying against others and did not directly concern Doe. I cannot enter default judgment against
the Defendants for failing to anticipate the sweeping scope of discovery in this case, which has
embraced events occurring years before the Defendants had notice that Doe would commence
litigation.
With respect to Defendant Kloczko, Doe points to statements indicating that she destroyed
all documents in her possession when she retired in June 2015, months after Doe filed his CHRO
complaint. Under Fed. R. Civ. P. 37(e), however, a Court may not impose sanctions as severe as
an adverse inference or default judgment unless the party that failed to preserve documents “acted
with the intent to deprive another party of the information[]” in those documents.5 Doe does not
argue that Kloczko acted with such intent, and has pointed to no evidence suggesting that she did.
The description that Doe provides suggests that she was, at most, negligent. As a result, it is
unlikely that Kloczko acted with sufficient culpability to warrant an adverse inference, let alone
default judgment. In any event, because I rule in Doe’s favor on the Administrative Defendants’
motion for summary judgment without drawing any adverse inferences on the basis of the missing
notes, I need not determine at this point whether any adverse inference is warranted due to
Kloczko’s conduct. Doe may file a motion in limine before trial to renew his argument with respect
to the notes that Kloczko disposed of when she retired. Any such motion would need to

5

Fed. R. Civ. P. 37(e) applies only to electronically stored information. I therefore
maintain discretion under the rules to impose sanctions up to and including default for spoliation
of physical evidence even without a showing of intent. Nevertheless, Rule 37(e) was adopted in
December 2015, well in advance of most of the discovery in this case, and provides persuasive
authority for the proposition that draconian sanctions such an adverse inference or default
judgment are appropriate only for severe discovery violations accompanied by a culpable state of
mind.
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demonstrate not only that an adverse inference is warranted, but also that it would not be unduly
prejudicial to the other defendants.
C. Doe’s Motion is Untimely
Third, the procedural history in this case weighs against imposing the requested sanctions.
Doe filed the motion for sanctions on January 12, 2018 (ECF No. 143), the day after the
Administrative Defendants filed their motion for summary judgment (ECF No. 137), and more
than five months after the close of fact discovery. (See ECF No. 114) (granting an extension of
discovery until July 30, 2017). The motion largely rehashes arguments raised in an earlier motion,
filed the day after discovery closed, requesting additional time for discovery. (ECF No. 120.) Like
the present motion for sanctions, Doe’s earlier motion argued that the Administrative Defendants
had failed to designate an adequately prepared witness under Rule 30(b)(6). (ECF No. 120 at 9.)
The Rule 30(b)(6) deposition was necessary, he asserted, because defendants had destroyed
documents relevant to his claims. (Id.) If these problems are sanctionable now, they were equally
sanctionable when Doe first described them to the Court. I denied that motion, however, and noted,
Additional time for discovery would not significantly advance the case, would not be
proportionate to the needs of the case, and would not promote the just, speedy, and
inexpensive determination of this action. The parties have already conducted extensive
discovery over at least 14 months in this case. Plaintiff has taken 15 depositions and
engaged in written discovery over that time period, and, especially in light of the fact that
the Court has already extended the scheduling order, has not made an adequate showing of
diligence to warrant the extra time requested.
(ECF No. 130.)
Nevertheless, over five months later, Doe asks the court to enter default judgment for the
same conduct that I previously found did not even warrant extending discovery. The Federal Rules
of Civil Procedure provide an avenue for a plaintiff to avoid summary judgment if his inability to
demonstrate the existence of a material fact was caused by a defendant’s recalcitrance. See Fed.

14

R. Civ. Pro. 56(d). But Doe has not made the showing required by Rule 56(d), and I am, in any
event, denying summary judgment in this ruling based on the conflicting evidence in the record.
Finally, it is far too late in the case, to retread old discovery disputes, see Lore v. City of Syracuse,
670 F.3d 127, 174 (2d Cir. 2012) (upholding a district court’s denial of default judgment as
untimely when the plaintiff filed her motion for sanctions long after she became aware of the
alleged discovery violations and shortly before trial), and Doe has not shown how he has been
prejudiced by the alleged failure to comply with Fed. R. Civ. P. 30(b)(6).
Doe’s third argument for sanctions relates to a deposition that I allowed after the close of
discovery. (ECF No. 130) (granting additional time for Doe to depose Student H). Student H
attested that he had told assistant coach Nick Teodosio about an assault in the football locker room,
and that Teodosio said he would tell Dunaj. Doe relies on Student H’s statement to argue that the
Defendants should be sanctioned because they did not identify Teodosio in response to an
interrogatory requesting “[t]he names of any . . . employee . . . known to you, who learned of,
observed, witness, had or claimed to have knowledge” of any assault or bullying. (ECF No. 14314 at 3.) This argument is untimely and without merit. First, Student H’s deposition was conducted
on September 7, 2017, more than four months before this motion was filed. Doe waited until
Defendants had already filed their motion for summary judgment before asking the Court to draw
an adverse inference in ruling on that motion, and he offers no explanation for the delay. Moreover,
Doe does not explain how Student H’s recollection of Teodosio’s hearsay statement requires a
default judgment against all Defendants on all counts. Indeed Doe does not provide a sufficient
basis to conclude that the Defendants were aware of Teodosio’s alleged knowledge of events, let
alone that they acted in bad faith. Student H’s testimony thus does not provide a basis for the
requested sanctions.

15

III.

Motion for Summary Judgment
A. Summary Judgment Standard
“Summary judgment is appropriate only if the movant shows that there is no genuine issue

as to any material fact and the movant is entitled to judgment as a matter of law.” Tolan v. Cotton,
134 S.Ct. 1861, 1866 (2014) (internal quotation marks and citations omitted). “In making that
determination, a court must view the evidence in the light most favorable to the opposing party.”
Id. (quotation marks omitted). On summary judgment a court must “construe the facts in the light
most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable
inferences against the movant.” Caronia v. Phillip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir.
2013). The moving party bears the burden of demonstrating that no genuine issue exists as to any
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). If the moving party carries
its burden, “the opposing party must come forward with specific evidence demonstrating the
existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011).
B. Immunity Defenses
The Administrative Defendants assert four distinct reasons that they are immune from
liability in this case. First, they argue that Connecticut’s doctrine of sovereign immunity bars Doe’s
claims. (ECF No. 137-1 at 13-14). Second, they claim that they are entitled to statutory immunity
under Conn. Gen. Stat. § 10-222l, a statute related to claims of school bullying. (ECF No. 137-1
at 14-19.) Third, they assert that they are immune from liability for the acts or omissions of
someone other than an employee, officer, or agent of the municipality under Conn. Gen. Stat. §
52-557n(b)(6). (ECF No. 137-1 at 19-20.) Finally, they claim they are entitled to governmental

16

immunity under the common law and Conn. Gen. Stat. § 52-557n(a)(2)(B). (ECF No. 137-1 at 2029.)
The Administrative Defendants raise their first three immunity defenses for the first time
in their motion for summary judgment.6 Federal Rule of Civil Procedure 8(c) requires parties to
raise affirmative defenses in the pleadings. “Most immunities are affirmative defenses.” In re Stock
Exchanges Options Trading Antitrust Litig., 317 F.3d 134, 151 (2d Cir. 2003) (collecting
authorities describing absolute immunity, statutory immunity, and common law immunity as
affirmative defenses that must be pleaded under Rule 8(c)). Nevertheless, “failure to plead an
affirmative defense does not necessarily result in waiver.” Rose v. AmSouth Bank of Fla., 391 F.3d
63, 65 (2d Cir. 2004). “[A] district court may still entertain affirmative defenses at the summary
judgment stage in the absence of undue prejudice to the plaintiff, bad faith or dilatory motive on
the part of the defendant, futility, or undue delay of the proceedings.” Saks v. Franklin Covey Co.,
316 F.3d 337, 350 (2d Cir. 2003). Doe responded to the merits of the Administrative Defendants’
immunity arguments, but he did not argue that these defenses were waived or that considering
them now would cause undue prejudice. (ECF No. 151.) As a result, I consider each immunity
defense in turn.
1. Common Law Sovereign Immunity
Defendants first argue that they are immune from suit under Connecticut’s doctrine of
sovereign immunity. (ECF No. 137-1 at 13-14.) “The doctrine of sovereign immunity is a rule of

6

The Administrative Defendants mentioned § 10-222l in passing and applied it to one
defendant in their motion to dismiss the First Amended Complaint in this case. (ECF No. 23-1 at
3-4.) I dismissed that complaint on other grounds (ECF No. 75), but later granted Doe’s motion
for reconsideration and allowed him to file his Second Amended Complaint. (ECF No. 90.)
Defendants did not raise any argument based on § 10-222l in their motion to dismiss the Second
Amended Complaint (ECF No. 96), or in their answer (ECF No. 133).
17

common law that operates as a strong presumption in favor of the state's immunity from liability
or suit.” Envirotest Sys. Corp. v. Comm'r of Motor Vehicles, 293 Conn. 382, 387–88 (2009).
“[B]ecause the state can act only through its officers and agents, a suit against a state officer
concerning a matter in which the officer represents the state is, in effect, against the state.” Miller
v. Egan, 265 Conn. 301, 313, 828 A.2d 549, 558 (2003). A board of education and its employees
may be entitled to sovereign immunity “when [they] perform those duties delegated to [them] by
the state.” Bd. of Educ. of City of New Haven v. City of New Haven, 237 Conn. 169, 181 (1996).
In contrast, when a board of education acts as a municipal agent, it is only entitled to more limited
governmental immunity. Heigl v. Bd. of Educ. of Town of New Canaan, 218 Conn. 1, 4 (1991).
Defendants argue that, because Connecticut has passed a statute requiring local boards of
education to develop plans to address bullying in schools, they were acting as agents of the state
when they implemented anti-bullying plans. Conn. Gen. Stat. § 10-222d. Therefore, they are
immune from liability for the conduct alleged in the complaint relating to their response to
bullying.
Defendants’ argument is contrary to the statutory scheme on which it relies. “The state
action mandated by § 10-222d begins and ends with the development, implementation,
submission, and assessment of the [anti-bullying] policy.” Palosz v. Town of Greenwich, No.
40315, 2018 WL 3826598, at *5 (Conn. App. Ct. Aug. 14, 2018). If a board of education and its
employees fail to follow the policy, however, they may be held liable without “control[ling] or
interfere[ing] with the activities of the state.” Id. As a result, boards of education and their
employees do not enjoy immunity from all suits alleging a failure to prevent harm from bullying.
This conclusion is buoyed by a statutory provision granting qualified immunity for boards of
education and their employees related to bullying. Conn. Gen. Stat. § 10-221l. That section

18

provides limited immunity for school boards and officials who implement the anti-bullying
policies required by § 10-222d in good faith. Id. As the Connecticut Appellate Court recently
concluded
[T]here would have been no need for the legislature to create a limited statutory
immunity for local boards of education [under § 10-222l(c)] if those boards already were
protected by sovereign immunity. This is particularly true given that § 10-222l was
adopted in 2011, nine years after § 10-222d was first enacted, and after a number of
conflicting decisions had been rendered in the Superior Court. . . . It makes more sense
that the legislature concluded instead that § 10-222l was necessary because local boards
of education are not protected by sovereign immunity when their employees fail to
comply with an antibullying policy.
Palosz, 2018 WL 3826598, at *6. The same point applies to employees of a local board of
education by virtue of the qualified immunity afforded them by Conn. Gen. Stat. § 10-222l(a).
The record in this case shows that the Torrington Board of Education promulgated a policy
pursuant to § 10-222d in December 2010. (56(a)1 Stmt. ¶ 28). As shown below, there are factual
disputes about whether the Administrative Defendants responded to bullying in good faith and in
accordance with the policy. (56(a)2 Stmt. ¶ 28.1–.7). As a result, sovereign immunity does not
bar Doe’s claims.
2. Statutory Immunity under Conn. Gen. Stat. § 10-222l
The Administrative Defendants next argue that they are statutorily immune under Conn.
Gen. Stat. § 10-222l. That statute creates a limited safe harbor from liability for claims relating to
bullying for both boards of education (under subsection (c)) and school employees (under
subsection (a)). The statute provides
No claim for damages shall be made against a school employee . . . who reports,
investigates and responds to bullying. . . in accordance with the provisions of the safe
school climate plan . . . if such school employee was acting in good faith in the discharge
of his or her duties or within the scope of his or her employment. The immunity provided
in this subsection does not apply to acts or omissions constituting gross, reckless, wilful or
wanton misconduct.

19

Conn. Gen. Stat. § 10-222l(a). The language for school boards is different, though conveys similar
requirements:
No claim for damages shall be made against a local or regional board of education that
implements the safe school climate plan, described in section 10-222d, and reports,
investigates and responds to bullying . . . if such local or regional board of education was
acting in good faith in the discharge of its duties. The immunity provided in this subsection
does not apply to acts or omissions constituting gross, reckless, wilful or wanton
misconduct
Conn. Gen. Stat. § 10-222l(c).
The mere existence of a bullying policy is not enough to shield the Administrative
Defendants from liability. Rather, they must also show that they reported, investigated, and
responded to bullying in accordance with the safe school climate plan. Conn. Gen. Stat. § 10222l(a) (limiting liability if the employee acts “in accordance with the provisions of the safe school
climate plan”); Conn Gen. Stat. § 10-222l(c). 7 Although they do describe several instances in
which they responded to bullying incidents involving Doe, the Administrative Defendants never
once state that their responses were consistent with the safe school climate plan. (See, e.g., ECF
No. 137-1 at 17-19) (listing bullying incidents and responses without stating whether those
responses conformed to the safe school climate plan). As a result, they have failed to carry their
burden of demonstrating the absence of a genuine dispute of material fact. See Celotex, 477 U.S.
at 323 (“[A] party seeking summary judgment always bears the initial responsibility of informing

7

The immunity provision for school boards is phrased slightly differently than the one
for school employees. Compare Conn. Gen. Stat § 10-222l(a), with Conn. Gen. Stat. § 10-222l
(c). Specifically, subsection (a) requires the employees to act “in accordance with” the school
climate plan, while subsection (c) requires the board the “implement” the plan. Subsection (c)
also requires the board to “report[], investigate[], and respond[]” to bullying and to act “in good
faith” in the discharge of its duties. The parties to not raise any arguments about these
distinctions and they do not appear to be material to the resolution of this motion. See Palosz,
2018 WL 3826598 at *2 n.8 (noting that the trial court had erroneously relied on subsection (a)
to analyze a school board’s immunity, but concluding that the error was “ultimately
immaterial”).
20

the district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.”)
In contrast, Doe has pointed to specific evidence supporting an inference that the safe
school climate plan was not yet in place when much of the bullying occurred. (56(a)2 Stmt. ¶ 28.3–
.5). Specifically, he points to statements made by Defendant Kloczko indicating that it took at least
three years to implement the 2010 bullying policy adopted by the board. Id. He also points to
statements by Defendant Creedon suggesting that portions of the policy were not in force until
2013. (56(a)2 Stmt ¶ 29). On balance, there is sufficient evidence in the record to raise a genuine
dispute of fact over whether the safe climate policy was in place and whether the Administrative
Defendants adhered to it between 2011 and 2013. As a result, the Administrative Defendants are
not entitled to summary judgment based on immunity under Conn. Gen. Stat. § 10-222l.
3. Immunity for the Acts and Omissions of Third Parties under Conn. Gen.
Stat. § 52-557n(b)(6)
The Administrative Defendants next contend that they “cannot be held liable for the
criminal conduct of [the student who sexually assaulted Doe].” (ECF No. 137-1 at 20) (citing
Conn. Gen. Stat. § 52-557n(b)). As the Connecticut Supreme Court has explained, though, the
“rejection of the notion of immunity for teachers and their municipal employers when their
negligent supervision allowed students to harm themselves or each other is one of the few clear
manifestations of legislative intent that emerges from the murky legislative history of the
municipal liability section of the Tort Reform Act of 1986 [§ 52-557n].” Elliott v. City of
Waterbury, 245 Conn. 385, 399 (1998). Accordingly, the Administrative Defendants are not

21

immune from liability simply because Doe was a harmed by a student rather than by these
defendants directly.
4. Governmental Immunity under the Common Law and Conn. Gen. Stat. §
52-557n(a)(2)(B)
The Administrative Defendants hinge their final immunity argument on Conn. Gen. Stat.
§ 52-557n(a)(2)(B) and the common law doctrine of governmental immunity for discretionary
acts.8 Municipal boards of education have statutory immunity for “negligent acts or omissions which
require the exercise of judgment or discretion as an official function of [governmental] authority,”
Conn. Gen. Stat. § 52-557n(a)(2)(B), while municipal officials, such as the Administrative Defendants,
are “immune from liability for negligence arising out of their discretionary acts” to avoid chilling the
exercise of governmental discretion. Coley v. City of Hartford, 312 Conn. 150, 161 (2014) (quotation
marks omitted).9 “An exception to this immunity exists—and [municipal employees] are exposed to
possible liability—when the circumstances make it apparent to the public officer that his or her failure
to act would be likely to subject an identifiable person to imminent harm.” Doe v. Petersen, 279 Conn.
607, 609 (2006) (internal quotation marks and alteration omitted). To bring the case within the
“identifiable victim/imminent harm” exception, Doe must establish, for each defendant, “three things:
(1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that
his or her conduct is likely to subject that victim to that harm.” Strycharz v. Cady, 323 Conn. 548, 573

8

As the Administrative Defendants acknowledge, at least one Connecticut trial court has
concluded that the immunity afforded school boards and school employees under § 52-557n has
been superseded by § 10-222l. (ECF No. 137-1 at 21 n.3) (citing Denny v. Town of Hamden Bd.
of Educ., No. CV146047401, 2017 WL 3975291, at *3 (Conn. Super. Ct. Aug. 1, 2017)).
Although that court’s reasoning is compelling, Doe has not made this argument and I do not
consider it here.
9
I have previously held that the acts and omissions alleged in this case were discretionary
(Ruling on Renewed Motion to Dismiss, ECF No. 75.) The parties have offered no reason to
reconsider that issue on summary judgment.
22

(2016) (quotation marks omitted). “The ultimate determination of whether governmental immunity
applies is ordinarily a question of law for the court unless there are unresolved factual issues material
to the applicability of the defense[,] in which case resolution of those factual issues is properly left to
the jury.” Id. at 574 (quotation marks and alterations omitted).

a. Imminent Harm
The Administrative Defendants argue that they could not have known Doe was subject to
imminent harm. In particular, they claim that Doe and his mother failed to report bullying incidents
as they occurred and initially refused to name his harassers. Their argument is better directed at
the third prong of the test—determining whether the Defendants actually knew or should have
known about the risk. The issue for the first prong is “the magnitude of the risk that the conditions
created”—i.e., “whether it was apparent to the municipal defendant that the dangerous condition
was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately
to prevent the harm.” Haynes v. City of Middletown, 314 Conn. 303, 323 (2014). As I explained in
denying Defendants’ motion to dismiss, “although the harassment of Doe allegedly occurred over
a period of two years and in different locations, the magnitude of the risk associated with repeated
beatings was sufficient to create an imminent harm.” (ECF No. 125 at 15-16.) The record contains
ample evidence to establish genuine issues of fact about the harm that Doe faced. For example,
Doe described an incident in which he was locked inside of a locker and held there by football
players for 10 to 15 minutes. (56(a)2 Stmt. ¶ 38.) He noted that he was hit repeatedly by certain
students on a daily basis (Id. ¶ 42.) On one occasion, he testified, a student shoved him to the
ground and threw rocks at him; one entered his mouth and he swallowed it. (56(a)1 Stmt. ¶ 12.)
On another occasion, he was shoved up against a fence, punched repeatedly, and had his shirt
ripped. (56(a)2 Stmt. ¶ 69.) Student A corroborated Doe’s account of frequent harassment in his
deposition. (ECF No. 158-15 at 20.) Overall, the record contains enough evidence of a pattern of
23

serious physical and emotional abuse to create a triable issue of fact as to whether Doe faced
imminent harm.
Doe also points to serious incidents involving the football team that put the Administrative
Defendants on notice about the magnitude of the risk of harm that freshman members of the
football team and other vulnerable students such as Doe faced at the hands of certain senior
members of the football team. While Doe attended THS, four members of the football team were
reportedly arrested for sexual assault. (56(a)2 Stmt. ¶¶ 39, 63.) One of those students conspired
with three more football players to commit felony robbery by jumping two 13-year-old boys. (Id.
¶ 48.) The record also contains evidence suggesting that the Administrative Defendants became
aware of a hazing ritual where the freshman quarterback was forced to choose between sucking
the toes of upperclassmen or having an eraser inserted into his rectum. (56(a)2 Stmt. ¶¶ 25.1, 25.9.)
In an incident reported to Defendant McSpiritt, Doe himself was bullied in the football locker
room. (56(a)2 Stmt. At ¶¶ 35-36.) Viewed in the light most favorable to Doe, the record shows
that Administrative Defendants had notice that Doe, a frequent target of reported bullying, faced
imminent harm at the hands of THS football players without adequate intervention.
b. Identifiable Victim
Administrative Defendants next contend that Doe was a member of a class of identifiable
victims only when he “was under the care and custody of” the Defendants, not when he was off
campus. They do not point to anything in the record to support their contention, relying instead on
legal arguments about the scope of liability for off-campus conduct. The Connecticut Supreme
Court has held that “school officials may be held liable for injuries occurring off school grounds
if the officials’ negligence on school property was the proximate cause of the injuries.” Strycharz,
323 Conn. at 578. Although the most traumatic incident that Doe describes occurred in a public

24

park, the record shows that school employees were aware that football players gathered after
practice to play unofficially. (James Burns Dep., ECF No. 158-15 at 183.) The parties dispute
whether the incident occurred over summer break or during the football season after practice.
(56(a)1 Stmt. ¶ 14 (“While on summer break . . . plaintiff was assaulted by DT.”); 56(a)2 Stmt. ¶
14 (“[T]he assault occurred after football practice on a date in August during the Football
season.”).) The record also shows that the Administrative Defendants knew that Student B (who
would later be convicted of the sexual assault against Doe) had previously participated in the
sexual hazing incident (56(a)2 Stmt. ¶¶ 25.14, 25.18, 26), and that Student B and Doe both attended
summer football practice. (Burns Depo., ECF No. 158-15 at 182-83.) While the Administrative
Defendants may not be held liable for failing to supervise students at the park, Strycharz, 323
Conn. at 583, they may be liable if their on-campus conduct caused the assault. Id. at 580. The
Administrative Defendants do not point to anything in the record that would allow me to conclude
that their conduct did not cause the incident as a matter of law. Specifically, viewing the record in
the light most favorable to the plaintiff, a reasonable jury could conclude that (1) Doe was a
frequent target of severe bullying by members of the football team; (2) the Administrative
Defendants failed to intervene to prevent members of the football team from harassing and
assaulting Doe; (3) the Administrative Defendants knew or should have known that their failure
would expose Doe to continued assaults; (4) assaults by members of the football team included
sexual assault, and specifically, sexualized hazing where upperclassmen inserted foreign objects
into freshmen players’ rectums; and (5) Student B, who sexually assaulted Doe, had previously
participated in a sexual hazing incident. (56(a)2 Stmt. ¶¶ 25.14, 25.18, 26.) The fact that the
ultimate assault occurred off campus does not foreclose an inference that it was caused by the
Administrative Defendants’ failure to intervene on campus during school hours.

25

Further, Doe’s claims do not turn exclusively on the single instance of sexual assault.
Rather, he alleges that he suffered persistent physical and verbal bullying that caused him pain and
emotional distress. (See ECF No. 91 ¶¶ 151-53.) Many of the incidents of bullying that he
described in his deposition occurred on school property or under school supervision. (E.g., ECF
No. 158-15 at 46-47, 48, 50, 75-76.) The Administrative Defendants do not appear to contend that
the on-campus bullying that Defendant endured was insufficient to support his claim for damages
as a matter of law. Considered in the light most favorable to Doe, there is sufficient evidence to
raise a genuine issue of fact regarding whether he was an identifiable victim.
c. Public Official to Whom It Is Apparent that His or Her Conduct Is Likely
to Subject That Victim to Harm
Finally, the Administrative Defendants argue that the identifiable victim-imminent harm
exception does not apply because there is insufficient evidence to demonstrate that they were aware
of the particular imminent harm that Doe faced. See Strycharz, 323 Conn. at 573 (noting that the
identifiable victim-imminent harm exception only applies where it is “apparent that [the municipal
employee’s] conduct is likely to subject that victim to that harm”). Their argument is unsupported by

the record. The Administrative Defendants list incidents from the complaint where they contend
they were not informed in time to respond or where they believe their responses were adequate.
(ECF No. 137-1 at 16-19, 25.) For example, they claim that an “alleged assault by [Student B] was
not reported to these defendants,” and that “[a]lleged daily assaults by students who punched
plaintiff in the arm were not reported until April, 2013.” (ECF No. 137-1 at 25.) They provide no
citation to the record to identify the incidents to which they refer, and they do not contend that
either occurred off campus or after hours. Nevertheless, they ask, “[H]ow was it to be apparent to
defendants that plaintiff was in imminent danger, and from what danger?” (Id. at 25-26.) Their
question is a good one, but it is one for a jury to decide.
26

For his part, Doe has pointed to sufficient evidence in the record to permit a jury decide
the issue. For example, Doe’s mother stated in her deposition that she reported several incidents
of bullying, but the school kept no record of her reports. (E.g., 56(a)2 Stmt. ¶ 10; 11; 12.) Further,
even the Administrative Defendants acknowledge that Doe and his mother repeatedly reported
instances of bullying to them in which Doe refused to name his tormenters out of fear of retaliation.
(56(a)1 Stmt. ¶¶ 16-18.) The Administrative Defendants suggest that the failure to identify the
bullies relieved them of any duty to protect Doe, but cite no authority for that proposition. In spite
of that failure, it remains for a jury to decide whether the Administrative Defendants had enough
information to take meaningful action to protect Doe given that (1) Doe and his mother repeatedly
complained of bullying; (2) some of the Administrative Defendants were aware that Doe had
already been attacked in the football locker room; and (3) the Administrative Defendants were
aware of other incidents of serious misconduct by members of the football team, including the
targeting of freshmen players and other vulnerable students.
The Administrative Defendants also suggest that the record does not show that each of
them was individually aware of imminent harm. (ECF No. 137-1 at 3.) (“Although plaintiff has
sued several individual defendants, when it comes to specific acts or omissions relating to liability,
the complaint consistently refers to the generic ‘Defendant’ or ‘Defendants’ without further
specification as to what each individual allegedly did, or did not, do that allegedly renders him or
her subject to liability in negligence.”) But they do not identify the specific defendants for whom
they believe evidence is lacking. Apart from summarizing the allegations against each defendant,
their argument deals with the defendants only as a group. E.g., (ECF No. 137-1 at 15) (“[T]hese
defendants are immune from liability . . . .”); (id. at 16) (“[T]hese defendants did in fact investigate
. . .”); (id. at 24 (“[T]hese defendants were not timely informed . . .”); (id. at 27) (“[I]t cannot be

27

said that the danger to which plaintiff allegedly was subjected was “apparent” such that the
defendants has [sic] a clear and unequivocal duty to act.”). They have thus failed to satisfy their
burden here:
“The argument that [Doe] has not produced evidence would have force at trial, or in other
circumstances where the plaintiff bears the burden of proving every essential element of
its claim. However, on a motion for summary judgment, it is the moving party's burden to
show in its motion papers ‘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). Thus, when a
defendant moves for summary judgment, it is the defendant who must show entitlement,
notwithstanding that, at trial, the plaintiff will have the burden of proving every element of
its claim.”
Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 115 (2d Cir. 2017). Upon my
review of the record, I find that Doe has identified some evidence record implicating each
Administrative Defendant.10 I cannot weigh that evidence at the summary judgment stage, and,
especially given the absence of particularized briefing, it is not my responsibility to sift the record
for evidence as to each defendant. See Amnesty America v. Town of West Hartford, 288 F.3d 467,
470-71 (2d Cir. 2002) (“[B]ecause nothing in the federal rules mandates that districts courts
conduct an exhaustive search of the entire record before ruling on summary judgment, district
courts are entitled to order litigants to provide specific citations.”). The Administrative Defendants
have therefore failed to show the absence of material fact about the applicability of their
governmental immunity defense.
C. Evidence of Liability

10

See, e.g., (56(a)2 Stmt. ¶¶ 23, 66 (implicating Dziekan); id. ¶¶ 11, 22 (implicating
Kloczko); 56(a)2 Stmt. ¶ 4, 6, 8.2, 17, 58, 21 (implicating McSpiritt); id. ¶¶ 8.1, 15, 16, 52, 17
(implicating DeZurik); id. ¶¶ 17, 17.2, 58 64 (implicating Carbone). The Board is also implicitly
responsible for the conduct of its employees and agents, including the other Administrative
Defendants.
28

The Administrative Defendants assert that “plaintiff’s discovery has adduced insufficient
admissible evidence to support liability as to these defendants.” But the entirety of their opening
and reply briefs are dedicated to their immunity arguments. “[S]ummary judgment is highly
unusual in a negligence action where the assessment of reasonableness generally is a factual
question to be addressed by the jury.” King v. Crossland Sav. Bank, 111 F.3d 251, 259 (2d Cir.
1997). Reading between the lines of their argument, it appears that the Administrative Defendants
contend that the record demonstrates that they were not negligent because there is evidence that
they did respond to some of Doe’s reports of bullying. (See ECF No. 137-1 at 24) (“There can be
no dispute that those events that were reported were addressed, albeit not to plaintiff’s
satisfaction.”). I cannot conclude that the Administrative Defendants’ responses were adequate as
a matter of law. For example, in the fall of 2012, Doe’s mother “raised the issue of bullying” in a
meeting with Defendant Carbone. 11 “[A]lthough plaintiff refused to name bullies, his special
education case manager, Carbone spoke with plaintiff’s teachers and asked them to be observant
as to interactions between plaintiff and other students.” (ECF No. 137-1 at 18.) Thus, Carbone
arguably “addressed” the issue. But a reasonable jury could still conclude that, given Carbone’s
position and the severity of the bullying of which he was or should have been aware, the situation
called for a more vigorous response. Particularly without any argument from the Administrative
Defendants on the issue, this is not one of the “highly unusual” cases warranting summary
judgment on Doe’s negligence claim.

IV.

Conclusion

Doe asserts that the meeting was intended to address “the severe and ongoing patterns
of bullying, sexual harassment, and retaliation by students and the impact of this bullying on the
plaintiff.” 56(a)2 Stmt. ¶ 17.1.
11

29

For the reasons stated above, Doe’s Motion for Sanctions is DENIED and the
Administrative Defendants’ Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
September 20, 2018

30