Doe v. Torrington Board Of Education et al

Filing 90

ORDER. For the reasons set forth herein, the motion for reconsideration and request for permission to file a second amended complaint 79 is GRANTED in part and DENIED in part. Doe shall file an amended complaint within 21 days of this Order, incorp orating, as relevant, the newly discovered evidence described in his motion for reconsideration. With regard to the previously dismissed federal claims (Counts One through Seven of the first amended complaint), Doe may replead only the portion of Cou nt One that sets forth a substantive due process claim against Defendant Daniel Dunaj based on a theory of state-created danger. Doe may also replead any or all of the state law claims (Counts Eight through Fourteen of the first amended complaint), o ver which the Court had previously declined to exercise supplemental jurisdiction in light of the dismissal of the federal claims. See 28 U.S.C. § 1367. Defendants will then have 21 days to respond. Also, within 30 days of this order, t he parties shall file a joint status report regarding the state of discovery and proposed revisions to the scheduling order in light of the re-opening of the case, including proposed deadlines for completing discovery, filing dispositive motions, and filing the joint trial memorandum. Signed by Judge Michael P. Shea on 11/17/16. (Tegeler, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN DOE,
Plaintiff
v.
TORRINGTON BOARD OF EDUCATION,
CHERYL KLOCZKO, JOANNE CREEDON,
CHARLES McSPIRIT, MICHAEL McKENNA,
DANIEL DUNAJ, JOHANNAH DEZURIK,
GERALD CARBONE and JAMES DZIEKAN
Defendants.

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No. 3:15-cv-00452 (MPS)

ORDER ON MOTION FOR RECONSIDERATION
Plaintiff John Doe asks the Court to reconsider its earlier dismissal and allow him to file a
second amended complaint in this school bullying case. Doe presents newly discovered evidence
to bolster his claim that Defendants—the Torrington Board of Education (the “Board”), head
football coach Daniel Dunaj, and several other Board employees—violated his due process rights
by placing him in danger of physical and sexual assault, hazing, and other harassment while he
was a student at Torrington High School. As explained below, the motion for reconsideration
(ECF No. 79) is GRANTED in part and DENIED in part. The Court will permit Doe to file a
second amended complaint asserting a state-created danger claim against Dunaj only, on the
basis of the newly discovered evidence. The Court also directed the parties to brief the question
whether the case should be dismissed for failure to exhaust administrative remedies. Both parties
argued that it should not, and the Court agrees.
I.

BACKGROUND
The Court assumes familiarity with the factual allegations in this case, which are set forth

in detail in its earlier ruling. (ECF No. 75 at 2-10.) As for the procedural history, on July 25,
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2014, Doe’s parent initiated a state administrative due process hearing, claiming that the Board
had failed to provide Doe with a free and appropriate public education in violation of the
Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. (“IDEA”), and Section
504 of the Rehabilitation Act, 29 U.S.C. §794 (“Section 504”). (ECF No. 88-1 at 1.) Ten months
later, on March 27, 2015, Doe filed a civil action in this court against the Board, football coach
Daniel Dunaj, and seven other employees. (ECF No. 1.) On May 25, 2015, Doe’s parent re-filed
the state due process hearing (ECF No. 88-1 at 1), and on May 29, 2015, Doe filed a first
amended complaint in this case. (ECF No. 22.)
The first amended complaint brought several federal claims: violations of the Due
Process Clause of the Fourteenth Amendment under 42 U.S.C. § 1983; the Equal Protection
Clause of the Fourteenth Amendment under § 1983; Section 504; Title II of the Americans with
Disabilities Act, 42 U.S.C. §12132; and Title IX of the Higher Education Act of 1972, 20 U.S.C.
§ 1681. (Id., Counts One through Seven.) It also included state law claims of negligence;
negligent hiring, retention, and supervision; intentional infliction of emotional distress; negligent
infliction of emotional distress; and violations of Conn. Gen. Stat. §§ 46a-64, 10-15(c), and 46a58(a). (Id., Counts Eight through Fourteen.)
On August 5, 2015, the parties agreed by letter that the state due process hearing officer
had jurisdiction over the claims regarding the right to a free and appropriate education under the
IDEA and Section 504, but not the alleged affirmative acts of discrimination. (ECF No. 39-1.)
They agreed to bifurcate the two issues. (Id.) On September 10, 2015, Doe and the Board
reached a resolution of the state administrative process via a settlement agreement. (ECF No. 881 at 1-4.) The settlement provided that the Board would pay $32,500 for Doe’s qualifying

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educational expenses. (Id. at 2.) Doe agreed to waive “all claims arising out of or in relation to
the Student’s educational program,” but not the claims presented in this civil action. (Id. at 2-3.)
On March 30, 2016, the Court granted Defendants’ motions to dismiss, holding that Doe
had failed to allege facts sufficient to state a claim as to the federal violations, and declining to
exercise supplemental jurisdiction over the state law claims. (ECF No. 75.) On April 28, 2016,
Doe filed a motion urging reconsideration of the substantive due process claim only, on the basis
of newly discovered evidence and to prevent manifest injustice. (ECF No. 79).
On October 3, 2016, the Court issued an order directing the parties to show cause why the
case should not have been dismissed without prejudice for failure to exhaust claims under the
IDEA. (ECF No. 86.) The parties responded on October 24, 2016, with both sides arguing that
IDEA exhaustion was not required. (ECF Nos. 88, 89.)
II.

LEGAL STANDARD
“The standard for granting [a motion for reconsideration] is strict, and reconsideration

will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“The major grounds justifying reconsideration are an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal
quotation marks and citation omitted.)

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III.

DISCUSSION
a. State-Created Danger
As explained in the Court’s earlier ruling (ECF No. 75 at 12-15),1 “nothing in the

language of the Due Process Clause itself requires the State to protect the life, liberty, and
property of its citizens against invasion by private actors.” DeShaney v. Winnebago Cty. Dep't of
Soc. Servs., 489 U.S. 189, 195 (1989). An exception to this general rule applies when the state
“in some way had assisted in creating or increasing the danger to the victim.” Matican v. City of
New York, 524 F.3d 151, 155 (2d Cir. 2008) (internal quotation marks and citation omitted).
When “state officials communicate to a private person that he or she will not be . . . punished, or
otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty
or property of others, those officials can be held liable under section 1983 for injury caused by
the misconduct” even if “none of the defendants are alleged to have communicated the approval
explicitly.” Pena v. DePrisco, 432 F.3d 98, 111 (2d Cir. 2005). “A failure to interfere when
misconduct takes place, and no more, is not sufficient to amount to a state created danger.” Id. at
110 (emphasis in original). And “in the context of school bullying and harassment, courts have
held that schools have no duty under the due process clause to protect students from assaults by
other students, even where the school knew or should have known of the danger presented.”
Scruggs v. Meriden Bd. of Educ., 2007 WL 2318851, at *12 (D. Conn. 2007) (internal quotation
marks omitted) (citing cases by the 3rd, 5th, 6th, 7th, 8th, and 10th Circuits). In addition, to establish
a due process violation, a plaintiff must also show that the state actor’s “behavior was ‘so

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Plaintiff argues that the Court misapplied controlling Second Circuit precedent in its
earlier ruling. But nothing in Plaintiff’s motion has convinced the Court that there were
“controlling decisions… that the court overlooked,” Shrader, 70 F.3d at 257, or that the Court
otherwise misinterpreted Second Circuit law.
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egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’”
Matican, 524 F.3d at 155 (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)).
In this case, the newly discovered evidence presented by Doe is sufficient to state a
plausible claim that Dunaj, and Dunaj only, is liable for violating Doe’s substantive due process
rights under a theory of state-created danger. Specifically, the Department of Children and
Families interviews attached to the motion for reconsideration (ECF No. 79-11) include
allegations, albeit conflicting ones, that Dunaj encouraged or condoned student athletes’ violent
behavior, implicitly communicating that they would not be “punished, or otherwise interfered
with while engaging in misconduct that [was] likely to endanger the life, liberty or property of
others.” Pena, 432 at 111.
In the interviews, one student stated that the varsity players “push [the freshmen] to the
ground, steal their shorts for practice and would swear at them” and “all the coaches know this
was going on but would do nothing about it… the coaches sometimes encourage the violence as
the coaches are verbally mean to the players-which them [sic] makes the players verbally mean
to the lower classman.” (ECF No. 79-11 at 3.) When a student missed practice for a funeral, “the
coaches were picking on him saying he was lying and really out having fun. This resulted in the
upperclassman calling him names.” (Id.) The student stated that when a player gets suspended,
the coaches make the entire team do laps – “this results in the players punching the kid who got
suspended who made them run more… the coaches know by making the entire team run for 1
kid-this is going to result in the other kids ganging up on that 1 kid.” (Id.) After an incident
where one student put icy-hot on his hands and put his hands on another student’s penis while
two others held him down, there were reports that “Coach [redacted] heard what happened but
told the kids ‘just don’t mount each other.’” (Id. at 4.) According to another student, “the coaches

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probably know more about what is going on then [sic] they will ever day [sic]-but they try to
preach to the players to correct the behavior” (Id. at 9.)
It is unclear from these interviews whether the “coaches” mentioned include Dunaj, and
to what extent Dunaj and the other coaches knew about the students’ alleged misconduct. (Dunaj
is the only coach named as a defendant.) For example, the “just don’t mount each other”
comment, which is perhaps the most serious allegation, appears to be attributed to a coach who is
not Dunaj, based on the overall context. But some of the other statements quoted above do not
differentiate between the “coaches” and, read in context, appear to include all of them. To be
sure, the interviews also include more favorable statements that do identify Dunaj. For example,
one student and his mother stated that “Dan Dunaj is the most appropriate” and they did “not
think he knows everything that goes on as he is always on the field or in his office working on
plays etc.” (Id. at 3.) Other students, referring to the “coaches” in general, asserted that if the
coaches were aware of violent incidents they would have taken action, for example “they would
have talked to the team as violence is not tolerated on the team.” (Id. at 6.)
At the motion to dismiss stage, however, the Court must draw all reasonable inferences in
the plaintiff’s favor. The Court therefore concludes that the new evidence is sufficient to allege
that Dunaj “plainly transmitted the message” that what the students did “was permissible and
would not cause [them] problems with authorities,” and further that these alleged actions were
“egregious.” Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 430-31 (2d Cir.
2009).
On the other hand, Doe has not stated a plausible claim that any Defendant other than
Dunaj assisted in increasing or creating the danger to him. For example, the newly discovered
evidence concerning Dunaj’s conduct while employed at Seymour High School (ECF Nos. 79-2

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to 79-9), though it may be relevant to the state law claims, does not affect Doe’s state-created
danger argument. None of the Seymour High School evidence suggests that Defendants
communicated, explicitly or implicitly, to students at Torrington High School that they would
not be punished for assaulting or bullying Doe.
b. IDEA Exhaustion
On the separate issue of IDEA exhaustion, after reviewing the parties’ responses to the
Order to Show Cause (ECF Nos. 88, 89), the Court has concluded that exhaustion is not required
in this case. The IDEA requires plaintiffs to exhaust administrative remedies before filing a civil
action that seeks relief available under the IDEA. 20 U.S.C. §1415(l).2 “The Second Circuit has
long held that failure by plaintiffs to exhaust the IDEA's administrative remedies deprives the court
of subject matter jurisdiction over their claims, including claims brought under the other federal
statutes referred to in § 1415(l) if those claims seek relief available under the IDEA.” Baldessarre
v. Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp. 2d 490, 502 (S.D.N.Y. 2011). “‘Relief
available’ means relief for the events, condition, or consequences of which the person complains,
not necessarily the kind of relief the complaint demands.” Polera v. Bd. of Educ. of Newburgh
Enlarged City Sch. Dist., 288 F.3d 478, 490 (2d Cir.2002) (internal quotation marks and citation
omitted).
The exhaustion requirement applies even where, as here, the plaintiff does not explicitly
plead an IDEA claim and seeks a damages remedy unavailable under the IDEA. See Cave v. E.

“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and
remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42
U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.],
or other Federal laws protecting the rights of children with disabilities, except that before the
filing of a civil action under such laws seeking relief that is also available under this subchapter,
the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be
required had the action been brought under this subchapter.” 20 U.S.C. § 1415(l).
2

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Meadow Union Free Sch. Dist., 514 F.3d 240, 247 (2d Cir. 2008) (“We… decline to excuse
appellants from the exhaustion requirement merely because in their suit they seek, inter alia,
pecuniary damages, a remedy unavailable under the IDEA.”); DiStiso v. Town of Wolcott, 2006
WL 3355174 at *5 (D. Conn. Nov. 17, 2006) (“To the extent the complaint could be construed to
allege claims under the IDEA, even though such claims are disavowed by Plaintiff or cloaked in
legal theories distinct from IDEA, those claims are dismissed for lack of subject matter
jurisdiction.”).
However, when the “claims [are] based on conduct other than that required by the
IDEA…claims not implicating the diagnosis of the children’s disabilities or the adequacy of the
educational services provided to the children,” IDEA exhaustion does not apply. Karlen ex rel.
J.K. v. Westport Bd. of Educ., 638 F. Supp. 2d 293, 300 (D. Conn. 2009). Conduct required by the
IDEA is “any matter relating to the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education.” Cave, 514 F.3d at 245 (citing 20
U.S.C. § 1415(b)(6)(A)).
In this case, the Court agrees with the parties that the IDEA exhaustion requirement is
inapplicable. The remaining claims, including failure to protect from assault, are “materially
distinguishable from claims that could fall within the ambit of the IDEA.” Id. at 247. In particular,
the claims do not implicate whether Doe was properly diagnosed as needing special education
services, or the adequacy of the education provided. In that sense, they are unlike claims found to
require exhaustion in other cases. See, e.g. id. (child prohibited from bringing his service dog to
school); Polera, 288 F.3d 478 (school failed to provide proper study materials and tutoring);
Murphy v. Town of Wallingford, 2011 WL 1106234 (D. Conn. Mar. 23, 2011) (plaintiff improperly
identified as needing special education services due to racial discrimination). Instead, this case has

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more in common with Karlen, where the district court, while dismissing some claims for lack of
IDEA exhaustion, nevertheless exercised jurisdiction over other claims, including “racial
discrimination claims based on allegations of deliberate indifference to the harassment by
[plaintiffs’] classmates, and the state law claims under Connecticut's anti-bullying statute and for
intentional infliction of emotional distress.” 638 F. Supp. 2d at 300.
At any rate, as of the re-opening of the case, IDEA administrative remedies have been
exhausted. Plaintiff pursued IDEA claims through the state administrative process, and those
claims were fully resolved through a settlement agreement on September 10, 2015. (ECF No. 881 at 1-4.) The purpose of exhaustion, “to channel disputes related to the education of disabled
children into an administrative process that could apply administrators’ expertise in the area and
promptly resolve grievances,” has been satisfied. Polera, 288 F.3d at 487. And the Board provided
Doe with the relief available under the IDEA by compensating him for educational services and
enabling him successfully to complete his high school education at a different institution. (ECF
No. 88-1 at 1-6.) In light of the Court’s conclusion above, Doe’s only remaining federal claim is
the substantive due process, state-created danger claim against Dunaj. This is a claim for which
there could be no relief in the IDEA administrative process, particularly now that claims related to
the adequacy of educational services have been fully resolved.
IV.

CONCLUSION
For the foregoing reasons, the motion for reconsideration and request for permission to

file a second amended complaint (ECF No. 79) is GRANTED in part and DENIED in part. Doe
shall file an amended complaint within 21 days of this Order, incorporating, as relevant, the
newly discovered evidence described in his motion for reconsideration. With regard to the
previously dismissed federal claims (Counts One through Seven of the first amended complaint),

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Doe may replead only the portion of Count One that sets forth a substantive due process claim
against Defendant Daniel Dunaj based on a theory of state-created danger. Doe may also replead
any or all of the state law claims (Counts Eight through Fourteen of the first amended
complaint), over which the Court had previously declined to exercise supplemental jurisdiction
in light of the dismissal of the federal claims. See 28 U.S.C. § 1367. Defendants will then have
21 days to respond.
Also, within 30 days of this order, the parties shall file a joint status report regarding the
state of discovery and proposed revisions to the scheduling order in light of the re-opening of the
case, including proposed deadlines for completing discovery, filing dispositive motions, and
filing the joint trial memorandum.
IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
November 17, 2016

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