Doe v. Enfield Board of Education et al

Filing 25

RULING granting 13 Motion to Dismiss. The Complaint is dismissed without prejudice to replead. Signed by Judge Janet C. Hall on 6/6/2018. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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EMILY DOE,
Plaintiff,
v.
ENFIELD BOARD OF EDUCATION, et al.,
Defendants.

CIVIL ACTION NO.
3:17-CV-1894 (JCH)

JUNE 6, 2018

RULING RE: MOTION TO DISMISS (DOC. NO. 13)
I.

INTRODUCTION
The plaintiff, Emily Doe, by and through her parents and next friends, Jane and

John Doe, filed a Complaint on November 10, 2017. See Complaint (“Compl.”) (Doc.
No. 1). In it, Doe brings five claims against the Enfield Board of Education and
individual defendants Superintendent Jeffrey Schumann, Principal Andrew Longey, and
Vice Principal Connel Clark in their individual and official capacities. See id. Doe’s
claims include violation of the Due Process Clause of the Fourteenth Amendment
(Counts One and Two), negligence (Count Three), negligent supervision (Count Four),
and negligent infliction of emotional distress (Count Five). See id. The defendants filed
a Motion to Dismiss Counts One and Two and/or Motion for Judgment on the Pleadings
on February 27, 2018. See Motion to Dismiss (“Mot. to Dismiss”) (Doc. No. 13).
For the reasons stated below, the defendants’ Motion to Dismiss is GRANTED,
and Counts One and Two of the Complaint are DISMISSED.

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II.

FACTS
The Complaint alleges the following facts.1 At the time of the events that are the

subject of the Complaint, Emily Doe was a 14-year-old student at Enfield High School.
See Compl. at ¶ 9. She had special education needs due to her mental disabilities,
including a diagnosis or history of Attention Deficit Disorder, Anxiety Disorder, Autism
Spectrum Disorder, and Mixed Expressive and Receptive Language Disorder. See
Compl. at ¶ 10. Student A was another student at Enfield High School, who was
committed to the Department of Children and Families (“DCF”) and who the Complaint
alleges had a history of aggressive behavior and a propensity for sexual violence about
which the defendants knew or should have known. See id. at ¶¶ 13–14.
On November 11, 2015, Student A called Doe at home and told her that he
wanted to take her virginity. See id. at ¶ 17. He asked her if he could do it the next day,
and Doe said no. See id. The next day at school, in a public location that was
observed or observable by the defendants, Student A told Doe to follow him. See id. at
¶ 19. Although she did not want to, Doe followed him, and he led her to a hallway in the
school’s basement that was undergoing construction. See id. at ¶ 23.
The Complaint alleges that the defendants and their agents failed to block
access to the area under construction or otherwise ensure that the hallway did not
become a dangerous location that could be used by students for acts of misconduct.
See id. at ¶ 21. The Complaint further alleges that the defendants and their agents

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The court accepts all factual allegations in the Complaint as true for the purposes of a motion to
dismiss. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

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observed or should have observed that Student A brought Doe to an unsafe location
where she was not scheduled to be at that time. See id. at ¶ 23.
Student A then dragged Doe into the boys’ bathroom and raped her in one of the
stalls. See id. at ¶¶ 24–25. The Complaint alleges that Vice Principal Clark was or
should have been in the proximity where this occurred, but failed to timely respond.
See id. at ¶¶ 25–26. Vice Principal Clark opened the door to the bathroom after the
assault had occurred and asked who was in the boys’ bathroom. See id. at ¶¶ 28–29.
Doe wanted to yell out, but felt threatened by Student A not to tell Vice Principal Clark
what was happening. See id. at ¶ 29. Doe exited the stall and, when Vice Principal
Clark asked why she was there, she answered that she had to use the bathroom and
must have walked into the wrong one. See id. at ¶¶ 30–31. Vice Principal Clark then
sent her back to class. See id. at ¶ 31.
Doe told two friends what had happened when she returned to class, and she
was called to Principal Longey’s office. See id. at ¶¶ 32–33. She told Vice Principal
Clark and Principal Longey about the sexual assault. See id. at ¶ 33. Administrators
then contacted the police, and Doe was brought by her mother to Connecticut
Children’s Medical Center for sexual assault evaluation. See id. at ¶ 34. The
construction area in the basement was closed off from student access starting
November 24, 2015. See id. at ¶ 35.
A report was filed anonymously with DCF, alleging inadequate supervision at the
school. See id. at ¶ 36. DCF conducted an investigation, but closed the matter without
findings of neglect, stating that Principal Longey and Vice Principal Clark addressed the
situation swiftly after the incident. See id. at ¶ 38. The Complaint alleges, however,

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that DCF did not conduct a thorough investigation. See id. The Complaint further
alleges that Doe suffered severe emotional distress as a result of the incident. See id.
III.

LEGAL STANDARD2
Federal Rule of Civil Procedure 8(a) requires a complaint to plead “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
Proc. 8(a). Under Rule 12(b)(6), to survive a motion to dismiss for failure to state a
claim, that plain statement must allege facts sufficient to state a plausible claim for
relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). While this plausibility standard does not require
probability, it is not satisfied by “a sheer possibility that a defendant has acted
unlawfully” or by allegations that are “merely consistent with a defendant’s liability.” Id.
(internal quotation marks omitted).
In deciding a motion to dismiss under Rule 12(b)(6), the court must accept all
material factual allegations of the complaint as true and draw all reasonable inferences
in favor of the plaintiff. See Hemi Grp., LLC v. City of New York, 559 U.S. 1, 5 (2010);
Jaghory v. N.Y. State Dep’t Educ., 131 F.3d 326, 329 (2d Cir. 1997). However, the
court is not required to accept as true a “legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). In those instances,

2 Although the Motion is titled Motion to Dismiss and/or Motion for Judgment on the Pleadings,
the court addresses the Motion as a Motion to Dismiss because no Answer has been filed, and the
pleadings have not closed. The court notes, however, that the standard of review for a motion for
judgment on the pleadings is the same as that for a motion to dismiss. See Willey v. Kirkpatrick, 801 F.3d
51, 61–62 (2d Cir. 2015). Therefore, the outcome would be the same if the Motion were treated as a
Motion for Judgment on the Pleadings under Rule 12(c).

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The court may consider
“only the facts alleged in the pleadings, documents attached as exhibits or incorporated
by reference in the pleadings, and matters of which judicial notice should be taken.”
Samuels v. Air Trans. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
IV.

DISCUSSION
Count One of the Complaint alleges that defendants Superintendent Schumann,

Principal Longey, and Vice Principal Clark violated Doe’s rights under the Due Process
Clause by failing to protect her from sexual assault by Student A. See Compl. at ¶¶ 41–
57. Count Two alleges that the Enfield Board of Education3 violated Doe’s rights under
the Due Process Clause by failing to train and supervise its employees and thereby
adopting a custom or policy of not addressing safety concerns related to construction
within the building and sexual assault amongst students. See id. at ¶¶ 58–67. Counts
Three, Four, and Five are not addressed by the Motion to Dismiss.
The defendants argue that Counts One and Two should be dismissed because
the Due Process Clause does not require the defendants to affirmatively protect Doe
from assault unless Doe had a special relationship with the state or the state assisted in
creating the danger to Doe. See Memorandum in Support of Motion to Dismiss (“Mem.
in Supp.”) (Doc. No. 13-1) at 9–10. The defendants argue that neither is the case here
because there is no special relationship based on compulsory school attendance and a

3 The court notes that the heading to Count Two states that it is against the Torrington Board of
Education. See Compl. at 10. Because the Complaint names the Enfield Board of Education as a
defendant, not the Torrington Board of Education, the court assumes that this is a misstatement and that
the plaintiff intended to assert the claim against the Enfield Board of Education.

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failure to intervene does not constitute an affirmative act in creating the danger. See id.
at 10–12. The defendants additionally argue that, even if they were required to protect
Doe, their actions or inactions did not rise to the level of egregious and outrageous
conduct necessary to sustain a substantive due process claim. See id. at 12–14.
Finally, the defendants argue that Count Two against the Enfield Board of Education
should be dismissed because Doe has not alleged facts supporting a custom or policy
sufficient to establish municipal liability under the Monell doctrine. See id. at 14–15.
A.

Fourteenth Amendment Due Process Claim (Count One)

The Due Process Clause of the Fourteenth Amendment states that “[n]o State
shall . . . deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1. “Among the liberties protected by the Due Process
Clause of the Fourteenth Amendment is ‘a right to be free from . . . unjustified intrusions
on personal security.’” Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008)
(quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)). Doe here alleges that this
includes the right to be free from sexual abuse. See Compl. at ¶¶ 56, 66. The
defendants do not dispute that such a right is included within the substantive protections
of the Due Process Clause. See Mem. in Supp. at 9.
However, “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).
Thus, the Due Process Clause “generally confer[s] no affirmative right to governmental
aid, even where such aid may be necessary to secure life, liberty, or property interests
of which the government itself may not deprive the individual.” Id. at 196. “[A] State’s

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failure to protect an individual against private violence simply does not constitute a
violation of the Due Process Clause.” Id. at 197.
Interpreting DeShaney, the Second Circuit has recognized two exceptions to this
rule. See Matican, 524 F.3d at 155. “First, the state or its agents may owe a
constitutional obligation to the victim of private violence if the state had a ‘special
relationship’ with the victim.” Id. (citing Ying Jing Gan v. City of New York, 996 F.2d
522, 533 (2d Cir. 1993)). “Second, the state may owe such an obligation if its agents ‘in
some way had assisted in creating or increasing the danger to the victim.’” Id. (quoting
Dwares v. City of New York, 985 F.2d 94, 98–99 (2d Cir.1993), overruled on other
grounds by Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 164 (1993)).
In addition to alleging facts sufficient to satisfy one of the two above exceptions,
in order to state a due process claim, the plaintiff must also allege facts to plausibly
show that the defendants’ behavior was “so egregious, so outrageous, that it may fairly
be said to shock the contemporary conscience.” Id. (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 848 n.8 (1998)).
1.

Special Relationship

A special relationship exists “when the State takes a person into its custody and
holds him there against his will.” Deshaney, 489 U.S. at 199–200. In such
circumstances, “the Constitution imposes upon [the state] a corresponding duty to
assume some responsibility for his safety and general well-being.” Id. The Second
Circuit has likewise “focused on involuntary custody as the linchpin of any special
relationship exception.” Matican, 524 F.3d at 156; see also Lombardi v. Whitman, 485
F.3d 73, 79 n.3 (2d Cir. 2007) (“Special relationships arise ordinarily if a government
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actor has assumed an obligation to protect an individual by restricting the individual’s
freedom in some manner, as by imprisonment.”). Following this reasoning, the Second
Circuit has recognized a special relationship in instances where the plaintiff is
incarcerated, involuntarily institutionalized, or in foster care. See, e.g., Youngberg v.
Romeo, 457 U.S. 307, 315–16 (1982); Lombardi, 485 F.3d at 79 n.3; Doe v. N.Y.C.
Dep't of Soc. Servs., 649 F.2d 134, 141 (2d Cir. 1981).
The Second Circuit has not yet had occasion to address whether a special
relationship exists as a result of compulsory school attendance. See Doe v. Torrington
Bd. of Educ., 179 F. Supp. 3d 179, 190 (D. Conn. 2016), reconsideration granted in part
on other grounds, No. 3: 15-CV-00452 (MPS), 2016 WL 6821061 (D. Conn. Nov. 17,
2016); T.K. v. New York City Dep't of Educ., 779 F. Supp. 2d 289, 307 (E.D.N.Y. 2011).
However, a number of courts within this district have held that no special relationship
exists in such circumstances. See Doe v. Torrington, 179 F. Supp. 3d at 190; Gagnon
ex rel. MacFarlane v. E. Haven Bd. of Educ., 29 F. Supp. 3d 79, 83–84 (D. Conn. 2014);
Risica ex rel. Risica v. Dumas, 466 F. Supp. 2d 434, 439 (D. Conn. 2006); Crispim v.
Athanson, 275 F. Supp. 2d 240, 246–47 (D. Conn. 2003).
The Crispim court distinguished the relationship between a school and a student
from that of a prison and an inmate or a mental institution and an involuntarily admitted
patient because “it is up to the parents of compulsory-school-age children to decide
whether education will take place in the home, or in public or private school.” Crispim,
275 F. Supp. 2d at 247. Thus, “the primary caretakers of compulsory-school-age
children remain their parents, irrespective of the fact that the children are present in
school at particular times of the day throughout the school year.” Id. This “restriction of

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freedom does not prevent the students from providing for their basic needs” in the way
that incarceration or involuntary institutionalization does. Id.
Other districts in this Circuit considering this question have reached the same
conclusion, see, e.g., P.W. v. Fairport Cent. Sch. Dist., 927 F. Supp. 2d 76, 81–82
(W.D.N.Y. 2013); HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881 CS, 2012
WL 4477552, at *10 (S.D.N.Y. Sept. 27, 2012), as have a number of other Circuits that
have addressed the issue, see, e.g., Hasenfus v. LaJeunesse, 175 F.3d 68, 71–72 (1st
Cir. 1999); Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997); Doe v.
Claiborne County, 103 F.3d 495, 510 (6th Cir. 1996); Graham v. Indp. Sch. Dist. No. I–
89, 22 F.3d 991, 994 (10th Cir. 1994); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729,
732 (8th Cir. 1993); D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364,
1371–73 (3d Cir. 1992); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272–73
(7th Cir. 1990).
A small number of cases within this Circuit have recognized, to the contrary, that
school officials may owe “some duty” to students when attendance is compulsory and
truancy laws are in place. See Pagano by Pagano v. Massapequa Pub. Sch., 714 F.
Supp. 641, 643 (E.D.N.Y. 1989) (“We consider elementary school students who are
required to attend school, the truancy laws still being in effect, to be owed some duty of
care by defendants which may or may not rise to the level required in the abovementioned circumstances.”); Lichtler v. Cty. of Orange, 813 F. Supp. 1054, 1056
(S.D.N.Y. 1993) (“A state imposing compulsory attendance upon school children must
take reasonable steps to protect those required to attend from foreseeable risks of
personal injury or death.”). However, these two cases have not been widely followed

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and have been expressly rejected by some subsequent cases. See Crispim, 275 F.
Supp. 2d at 247 (disagreeing with Pagano and Lichtler “based on the restrictive
language of DeShaney and its progeny, namely Dwares and D.R.”); HB v. Monroe
Woodbury, 2012 WL 4477552, at *10 (finding Pagano unpersuasive because it “did not
address the issue in depth, was decided over twenty years ago, and has since been
distinguished by several other courts based in part on subsequent authority”); Reid ex
rel. Roz B. v. Freeport Pub. Sch. Dist., 89 F. Supp. 3d 450, 457–58 (E.D.N.Y. 2015).
While the court notes that the Second Circuit has not addressed this issue and
could reasonably reach the outcome in Pagano and Lichtler, the Circuit has given no
indication that it would do so. In the absence of Second Circuit guidance, the court
sees no reason to deviate from the vast majority of precedent, both of courts in this
Circuit and other Courts of Appeals. Thus, the court holds that the defendants here did
not owe Doe an affirmative duty to prevent Student A from infringing on her right to be
free from sexual assault merely by virtue of her compulsory school attendance.
Doe further argues that, even if compulsory school attendance is insufficient to
establish a special relationship on its own, it may do so in combination with other
factors, namely Doe’s particular vulnerability to victimization due to her mental
disabilities. See Memorandum in Opposition to Motion to Dismiss (“Mem. in Opp.”)
(Doc. No. 21) at 12–13. To support her argument, Doe cites only one case from the
Southern District of Texas. See Teague ex rel. C.R.T. v. Texas City Indep. Sch. Dist.,
348 F. Supp. 2d 785, 792–93 (S.D. Tex. 2004), vacated in part, 386 F. Supp. 2d 893
(S.D. Tex. 2005), aff'd sub nom. Teague v. Texas City Indep. Sch. Dist., 185 Fed. App'x
355 (5th Cir. 2006). In Teague, the district court distinguished special needs students

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from typical high school students, holding that “mentally disabled students who attend
public school under Texas’s compulsory attendance laws, in specially designed and
segregated special education classes, are involuntarily confined and thus enjoy a
special relationship with their school district.” Id. at 793.
This court, however, declines to follow Teague. The court first notes that Teague
is not binding on this court and is, therefore, only valuable precedent to the extent the
court finds it persuasive. The persuasive value of Teague, however, has been
weakened by subsequent history and undermined by later case law. The Teague court
denied the motion to dismiss the complaint for the reasons quoted above, see id. at
793, but the court later granted summary judgment for the defendant because the facts
after discovery did not support a due process claim. See Teague ex rel. C.R.T. v.
Texas City Indep. Sch. Dist., 386 F. Supp. 2d 893, 895–96 (S.D. Tex. 2005), aff'd sub
nom. Teague v. Texas City Indep. Sch. Dist., 185 Fed. App'x 355 (5th Cir. 2006).
“While the Court believes that, in some circumstances, a special relationship may exist
between a school district and a special education student, these circumstances do not
rise to that level.” Id. Specifically, the Teague court reasoned:
The Fifth Circuit held that a special relationship did not exist
between a school district and a thirteen-year-old student who
was raped by the janitor. See Doe v. Hillsboro Indep. Sch.
Dist., 113 F.3d 1412, 1415 (5th Cir. 1997). Therefore, to the
extent that age reflects maturity and judgment, the age of
thirteen—whether functional or chronological—is not enough
under Fifth Circuit precedent to create a special relationship,
even in conjunction with compulsory attendance laws.
Id. at 896 n.1. Based on this language, at least one district court in Texas has indicated
that a special relationship cannot be proved without specific allegations of the plaintiff’s
chronological age, functional age, or IQ. See Goad v. Lanier, No. CIV.A. H-06-0718,
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2006 WL 1698014, at *5–*6 (S.D. Tex. June 16, 2006). In this case, Doe was 14 years
old at the time of the incident, and the Complaint includes no allegations of her
functional age as a result of her disabilities.
The persuasive authority of Teague is further weakened by its treatment by other
courts in the Fifth Circuit. See R.S. ex rel. Smith v. Starkville Sch. Dist., No. 1:12-CV00088-SA-DAS, 2013 WL 5295685, at *4 n.1 (N.D. Miss. Sept. 19, 2013) (noting that
the Teague court “did not explain the circumstances in which a special relationship
might exist between a school district and a special education student” and declining “to
extend the exception based solely on dicta from another district court”); C.L. ex rel. R.L.
v. Leander Indep. Sch. Dist., No. A-12-CA-589 LY, 2013 WL 2452724, at *4 (W.D. Tex.
June 4, 2013), opinion withdrawn and superseded in part on other grounds, No. A-12CA-589 LY, 2013 WL 3822100 (W.D. Tex. July 23, 2013) (stating that Teague is no
longer good law after Doe v. Covington, 675 F.3d 849 (5th Cir. 2012)).
Finally, contrary to Teague, a number of courts in this Circuit have found no
special relationship between a school and a student, even where the student was
disabled. See Doe v. Torrington, 179 F. Supp. 3d at 183, 91–92; Drain v. Freeport
Union Free Sch. Dist., No. 14-CV-1959 SJF, 2015 WL 1014451, at *1 (E.D.N.Y. Mar. 9,
2015) (addressing a plaintiff whose disability is discussed in Drain v. Freeport Union
Free Sch. Dist., No. CV 14-1959 SJF AKT, 2015 WL 1014413, at *1 (E.D.N.Y. Jan. 14,
2015), report and recommendation adopted in part, rejected in part, No. 14-CV-1959
SJF, 2015 WL 1014451 (E.D.N.Y. Mar. 9, 2015)); M. v. Stamford Bd. of Educ., No.
3:05-CV-0177 WWE, 2008 WL 2704704, at *6 (D. Conn. July 7, 2008), decision vacated
in part on reconsideration on other grounds sub nom. M. ex rel. Mr. M. v. Stamford Bd.

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of Educ., No. 3:05-CV-0177 (WWE), 2008 WL 4197047 (D. Conn. Sept. 9, 2008);
Robertson ex rel. Robertson v. Arlington Cent. Sch. Dist., No. 99 CIV. 0675 BDP, 2000
WL 35948049, at *1, *5 (S.D.N.Y. Jan. 27, 2000), aff'd sub nom. Robertson v. Arlington
Cent. Sch. Dist., 229 F.3d 1136 (2d Cir. 2000). Doe v. Torrington, Drain, and Robertson
reached this outcome without expressly discussing the special needs of the student.
The court in M. v. Stamford, however, stated, “The fact that plaintiff M. may be mentally
handicapped does not affect the applicable constitutional standards.” M. v. Stamford,
2008 WL 2704704, at *6 (citing Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th
Cir. 1993)).
Absent Second Circuit precedent indicating otherwise, this court declines to
deviate from the other courts in the Circuit. The court likewise holds that the
defendants’ knowledge of Doe’s particular vulnerability due to her mental disabilities
does not change the court’s analysis of whether a special relationship exists. This is
consistent with language in DeShaney, which states, “The affirmative duty to protect
arises not from the State’s knowledge of the individual’s predicament or from its
expression of intent to help him, but from the limitation which it has imposed on his
freedom to act on his own behalf.” DeShaney, 489 U.S. at 200.
Accordingly, the court concludes that there was no special relationship between
the defendants and Doe and, therefore, that Doe has not stated a due process claim
based upon this theory.
2.

State-Created Danger

The second exception under which the state owes an affirmative obligation to
protect a victim from a private actor occurs when “the officers in some way had assisted
in creating or increasing the danger to the victim.” Dwares v. City of New York, 985
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F.2d 94, 99 (2d Cir. 1993). Determining whether the state has created the danger
requires the court to distinguish “between conduct that is ‘passive’ as in DeShaney and
that which is ‘affirmative’ as in Dwares.” Pena v. DePrisco, 432 F.3d 98, 109 (2d Cir.
2005). The Second Circuit recognized that treading this “fine line” “can of course
sometimes be difficult.” Id. at 109–10. “‘[T]he boundaries of the state created danger
exception to DeShaney are not entirely clear,’ but the exception does require a
government defendant to ‘either be a substantial cause of the danger . . . or at least
enhance it in a material way.’” Scruggs v. Meriden Bd. of Educ., No. 3:03-CV2224(PCD), 2007 WL 2318851, at *12 (D. Conn. Aug. 10, 2007) (quoting Clarke v.
Sweeney, 312 F.Supp.2d 277, 293 (D. Conn. 2004)).
In drawing this boundary, “[a] failure to intervene when misconduct takes place,
and no more, is not sufficient to amount to a state created danger.” Pena, 432 F.3d at
110 (emphasis in original). Therefore, “‘allegations that the [defendants] merely stood
by and did nothing’ are insufficient to state a constitutional violation.” Id. (quoting
Dwares, 985 F.2d at 99). Nor are allegations that the defendants merely had a “general
knowledge of the danger.” Reid, 89 F. Supp. 3d at 458. Rather, the plaintiff must allege
“an affirmative act” on the part of the defendants. See Lombardi, 485 F.3d at 79.
The Second Circuit has recognized a state-created danger in instances in which
“[t]he affirmative conduct of a government official . . . communicates, explicitly or
implicitly, official sanction of private violence.” Okin v. Vill. of Cornwall-On-Hudson
Police Dep't, 577 F.3d 415, 429 (2d Cir. 2009); see also Dwares, 985 F.2d at 99 (finding
a state-created danger where police officers communicated to skinheads that “unless
they got totally out of control they would not be impeded or arrested”). Thus, when

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“state officials communicate to a private person that he or she will not be arrested,
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 under Dwares.” Pena, 432 F.3d at
111 (finding a state-created danger where police officers encouraged a colleague to
drink excessively prior to driving, in part by participating in the drinking with him). For
example, “repeated, sustained inaction by government officials, in the face of potential
acts of violence, might constitute prior assurances, rising to the level of an affirmative
condoning of private violence, even if there is no explicit approval or encouragement.”
Okin, 577 F.3d at 428 (citing Pena, 432 F.3d at 111).
Doe argues that the defendants engaged in a number of affirmative acts that
created or increased the danger she faced from Student A. These acts include that: (1)
the defendants knew or should have known and willfully ignored that “Student A had a
history of misconduct that demonstrated a propensity toward violence, but failed to
address the same” by putting any protections into place, see Compl. at ¶¶ 14–15, 50;
(2) they knew or should have known and willfully ignored that Doe was “limited in her
ability to defend herself against misconduct by her peers because of her disabilities, but
failed to address the same,” see id. at ¶ 47; (3) they “created a dangerous condition by
disabling and or allowing the disabling of surveillance and monitoring devices in a
naturally isolated area and where construction was occurring” and by failing to block
access to that area, see id. at ¶¶ 21–22, 52; (4) they failed to respond to Student A’s
actions leading up to the assault, including bringing Doe to the basement where she
was not supposed to be at the time, see id. at ¶ 23, 26–31; Mem. in Opp. at 8–9; (5)

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they “implicitly communicat[ed] to Student A that he would not be punished or otherwise
interfered with while engaging in misconduct that was foreseeable leading to the sexual
assault,” see Compl. at ¶ 51.
The court first addresses the conduct in acts (1) through (4) above. Although
Doe claims to allege affirmative acts, see Compl. at ¶ 46; Mem. in Opp. at 10–11, these
allegations are merely failures to prevent or intervene in the sexual assault and do not
actually identify any affirmative conduct of the defendants. Even the third allegation,
which is framed affirmatively as “creating a dangerous condition,” is merely a failure to
block or monitor the area. Doe’s rephrasing of a failure to act in affirmative terms does
not alter the court’s analysis. See Drain, 2015 WL 1014413, at *11 (“Notwithstanding
Plaintiffs’ attempts at framing the actions of Assistant Principal Mille and School Safety
Officer Beckett as affirmative, non-passive conduct, the facts alleged do not rise to the
level of active facilitation and encouragement of K.W. to inflict harm upon J.D. sufficient
to state a viable claim of ‘state created danger.’”). As such, these allegations are the
kind of passive conduct that DeShaney and its progeny have held do not state a claim
for relief under the state-created danger exception.
Courts in this Circuit have considered similar instances of a school’s failure to act
in the face of bullying and student-on-student violence and held that such cases are not
sufficient to satisfy the state-created danger exception. See Gagnon, 29 F. Supp. 3d at
84; P.W. v. Fairport, 927 F. Supp. 2d at 83–84 (“The failure to respond to any particular
incident or the failure to adequately discipline a student in a manner that would prevent
future bullying is insufficient to state a claim for a violation of due process based on a
state created danger, absent an indication that school officials in some way

16

communicated an official sanction of the bullying.”); H.B. v. Monroe Woodbury, 2012
WL 4477552, at *11; Campbell v. Brentwood Union Free Sch. Dist., 904 F. Supp. 2d
275, 281 (E.D.N.Y. 2012); Chambers v. N. Rockland Cent. Sch. Dist., 815 F. Supp. 2d
753, 765–68 (S.D.N.Y. 2011); Scruggs, 2007 WL 2318851, at *12 (“[I]n 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.”); Risica, 466 F. Supp. 2d
at 439–40.4 Indeed, Doe’s case is even weaker than many of these cases because
Doe points to no prior instances of misconduct reported to the school that the school
failed to respond to or act upon.
In contrast, the conduct in allegation (5) above—that the defendants implicitly
communicated to Student A that he would not be punished or interfered with in his
misconduct—would constitute an affirmative act if sufficiently pled. However, the
Complaint contains only a conclusory statement reciting the standard in Pena and does
not provide any factual allegations indicating that the defendants implicitly
communicated this to Student A. As such, a legal conclusion is not entitled to the same
presumption of truth given to factual allegations when considering a motion to dismiss.
See Papasan v. Allain, 478 U.S. 265, 286 (1986). Indeed, the only factual allegations
on which Doe could rely in asserting an implicit official sanction are the same failures to
intervene already determined above to be insufficient to state a claim based on a state-

4 Doe attempts to distinguish the cases cited by the defendants as cases decided at the summary
judgment stage rather than at the motion to dismiss stage. See Mem. in Opp. at 10. Although the
evidentiary burden that must be met differs at these two stages, however, the legal standard for what
constitutes conduct amounting to a state-created danger does not. Additionally, a number of the above
cases were decided on a motion to dismiss. See Gagnon, 29 F. Supp. 3d at 84; P.W. v. Fairport, 927 F.
Supp. 2d at 83; H.B. v. Monroe Woodbury, 2012 WL 4477552, at *10; Campbell, 904 F. Supp. 2d at 280.

17

created danger. The Second Circuit has indicated that, in contrast to the special
relationship exception, which relies on the relationship between the state and the victim,
the state-created danger exception “arises from the relationship between the state and
the private assailant.” Pena, 432 F.3d at 109; see also Lombardi, 485 F.3d at 80
(defining a state-created danger “through some interaction or relationship with the
wrongdoer”). Here, the Complaint alleges no interactions or relationships between any
of the defendants and Student A.
The absence of an implicit communication of official sanction in this case is made
further apparent by comparison to cases in which the Second Circuit has found such a
communication to exist. In Dwares, the police expressly told skinheads that they would
not prevent or interfere with the skinheads’ attack on protesters. See Dwares, 985 F.2d
at 99. In Hemphill v. Schott, the police officers gave a handgun to a robbery victim and
drove the victim to the scene of the robber’s arrest, where the victim then shot the
robber. See Hemphill v. Schott, 141 F.3d 412, 419 (2d Cir.1998). In Okin, police
officers responded to the prior complaints of domestic violence, not only by failing to
intervene, but also by “openly express[ing] camaraderie with [the attacker] and
contempt for [the victim].” Okin, 577 F.3d at 430. Finally, in Pena, police officers
encouraged their colleague to drink excessively prior to driving, in part by participating
in the drinking with him. See Pena, 432 F.3d at 110–11. The case before this court
differs from these cases because, here, there are no allegations of anything “similar to
the direct contact between the law enforcement officials and the miscreants in Pena and
Okin.”5 See Gantt v. Ferrara, No. 15-CV-7661 (KMK), 2017 WL 1192889, at *12

5

Doe further relies on Doe v. Torrington, which found upon reconsideration that the plaintiff had
stated a claim based on state-created danger against one defendant. See Doe v. Torrington Bd. of

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(S.D.N.Y. Mar. 29, 2017). Doe has alleged no facts from which an inference could be
drawn that the defendants communicated to Student A an approval of his misconduct,
either explicitly or implicitly. Neither has Doe alleged “repeated, sustained inaction” on
the part of the defendants because the Complaint has not alleged that any acts of
potential violence occurred prior to the assault on Doe to which the defendants could
even have responded with inaction.
Therefore, Doe has not alleged facts sufficient to state a due process claim
based on a state-created danger. As Doe has sufficiently alleged neither the special
relationship exception nor the state-created danger exception, she has not stated a
plausible claim for relief under the Due Process Clause, and Count One of the
Complaint is dismissed without prejudice. Doe is granted leave to replead her due
process claim under the state-created danger exception if she can allege facts plausibly
supporting an inference that the defendants implicitly communicated to Student A that
he would not be punished or interfered with.
3.

Egregious and Outrageous

Even if Doe had alleged facts under either of the above exceptions, the court
would still dismiss Count One for failure to allege facts that rise to the level of egregious
and outrageous conduct required to state a substantive due process claim. In order to

Educ., No. 3: 15-CV-00452 (MPS), 2016 WL 6821061, at *3 (D. Conn. Nov. 17, 2016). That case,
however, further reinforces the court’s conclusion that no state-created danger is alleged here. In Doe v.
Torrington, the plaintiff alleged on reconsideration that the coaches, including the defendant at issue, not
only knew about and failed to prevent hazing between students, but that they encouraged the violence by
being “verbally mean to the players—which . . . makes the players verbally mean to the lower classmen.”
See id. That Complaint also alleged that the coaches picked on a student for missing practice for a
funeral and made the entire team run laps as a result, knowing that this would lead to the other students
“ganging up” on that one student. See id. The court agrees that these are affirmative acts that
encouraged the hazing. No similar acts are alleged here, however. Notably, the court in Doe v.
Torrington only found a plausible claim against the one defendant coach, but not against any of the other
defendants against whom no similar affirmative acts were alleged. See id.

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state a due process claim, the plaintiff must allege facts indicating that the defendants’
behavior was “so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” Matican, 524 F.3d at 155. “To shock the conscience,
governmental conduct must be so extreme or outrageous that it can be viewed as
‘brutal’ and ‘offensive to human dignity.’” Scruggs, 2007 WL 2318851, at *13 (quoting
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246 (2d Cir. 2001)). “In cases
where courts have found such conduct, the facts were truly outrageous.” Gagnon, 29 F.
Supp. 3d at 84.
The court first notes that, when determining whether the conduct was egregious
and outrageous, the object of the analysis is the defendants’ conduct, not the conduct of
the private actor inflicting the harm on the victim. See, e.g., Doe v. Torrington, 179 F.
Supp. 3d at 191–92 (focusing on the defendants’ behavior); Scruggs, 2007 WL
2318851, at *13 (focusing on the “Defendants’ failure to fully remedy the bullying
situation,” rather than the actions of the bully). Undisputably, rape shocks the
conscience. However, the question before the court is not whether Student A’s rape of
Doe was egregious and outrageous, but whether the defendants’ failure to intervene
and protect Doe was egregious and outrageous.
The facts alleged in the Complaint cannot plausibly support such an inference.
The defendants’ failure to block off or monitor the area under construction does not
shock the conscience. Cf. Gagnon, 29 F. Supp. 3d at 84 (holding that the Board of
Education’s failure to have a guard at each entrance of the school does not shock the
conscience). Nor does the defendants’ failure to prevent the sexual assault or intervene
while the assault was occurring. See Smith v. Guilford Bd. of Educ., 226 Fed. App’x 58,

20

62 (2d Cir.2007) (“Defendants’ failure to respond to the harassing and bullying to which
Jeremy was subjected . . . while highly unfortunate, does not rise to the level of
egregious conduct . . . so brutal and offensive to human dignity as to shock the
conscience.” (internal quotation marks omitted)); Doe v. Torrington, 179 F. Supp. 3d at
191–92; Scruggs, 2007 WL 2318851, at *13; P.W. v. Fairport, 927 F. Supp. 2d at 84.
For instance, it was not egregious and outrageous that Vice Principal Clark entered the
bathroom after the assault had taken place rather than during the assault, nor was it
egregious and outrageous that he sent Doe back to class after she told him that she
had merely entered the wrong bathroom. Doe has not alleged that Vice Principal Clark
did these things knowing that Doe was being raped in the bathroom at the time.
Doe argues that the defendants’ conduct was egregious and outrageous
because they acted with deliberate indifference and recklessness. See Mem. in Opp. at
15. The circumstances under which deliberate indifference constitutes egregious and
outrageous conduct are not fully defined. See Matican, 524 F.3d at 158. Intentional
infliction of injury is “most likely to rise to the conscience-shocking level,” while
negligence “is categorically beneath the threshold of constitutional due process.” Id.
(citations omitted). The Second Circuit has also indicated that deliberate indifference
does not shock the conscience “in the context of a time-sensitive emergency” or where
the defendants are subject to the “pull of competing obligations.” Id. (citations omitted).
However, the Second Circuit in Pena stated that deliberate indifference or recklessness
may be sufficient to establish liability “because it requires proof that the defendant
focused upon the risk of unconstitutional conduct and deliberately assumed or
acquiesced in such risk.” Pena, 432 F.3d at 114.

21

Even if deliberate indifference does state a due process claim, however, Doe has
not alleged facts supporting an inference of deliberate indifference. The Complaint
contains a conclusory statement that the defendants “intentionally, willfully, and/or
recklessly” deprived Doe of her due process rights, but the court does not assume the
truth of legal conclusions in determining a motion to dismiss, only of factual allegations.
See Compl. at ¶ 56; Papasan, 478 U.S. at 286. Throughout the Complaint, Doe alleges
only that the defendants “knew and/or should have known” about the risk of sexual
assault. See Compl. at ¶¶ 14, 47, 50, 53, 54; see also id. at ¶¶ 18, 19, 23, 26 (alleging
that Student A’s actions prior to the assault were “observed and/or observable” and that
defendants “were and/or should have been in the proximity of the location”). These
allegations merely state a claim of negligence, and do not rise to the level of deliberate
indifference, which is defined by Pena as alleging that “the defendant focused on the
risk of unconstitutional conduct and deliberately assumed or acquiesced in such risk.”
See Pena, 432 F.3d at 114. Additionally, merely because the defendants knew or
should have known about Student A’s history of violence does not mean they had
reason to know that he posed an immediate danger to the other students or a specific
danger to Doe personally. Cf. Scruggs, 2007 WL 2318851, at *13 (“It is also unclear
that Defendants had reason to believe that because J.W. assaulted Plaintiff the prior
year, he posed an immediate danger to Daniel.”). For example, the Complaint does not
allege that any of the defendants was made aware of the phone call Student A made to
Doe the night before the assault. See Compl. at ¶ 17. Therefore, the factual allegations
in the Complaint do not allege that the defendants acted with deliberate indifference in
failing to prevent the assault.

22

Accordingly, Doe has not stated a claim that the defendants’ actions were
egregious and outrageous. Count One is dismissed, in the alternative, on this ground.
The court granted Doe leave to replead the claim under the state-created danger
exception. Should she choose to do so, Doe must plead facts sufficient to plausibly
support an inference that the defendants’ actions were egregious and outrageous.
B.

Municipal Liability (Count Two)

Count Two alleges municipal liability against the Enfield Board of Education for
the due process violation alleged in Count One. See Compl. at ¶¶ 58–67. Under
section 1983, a municipality cannot be held liable under a theory of respondeat
superior, but can be sued if “the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.” Monell v. Dep’t Soc. Servs., 436 U.S. 658, 690–91
(1978). To bring a successful claim against a municipality, then, a plaintiff must prove:
“(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right;
(3) causation; (4) damages; and (5) that an official policy of the municipality caused the
constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
Here, because the court has held that Doe failed to state a claim that the
individual defendants violated her constitutional rights, Doe has not alleged the second
element of a Monell claim, i.e. a deprivation of a constitutional or statutory right.
Accordingly, Count Two is dismissed without prejudice to Doe repleading Count One.
See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Because the district
court properly found no underlying constitutional violation, its decision not to address
the municipal defendants’ liability under Monell was entirely correct.”); see also Matican,
524 F.3d at 154 (“The first two claims depend on a single threshold question: did the
23

officers’ actions violate Matican’s constitutional rights? If they did not, then the City
cannot be liable to Matican under § 1983, regardless of whether the officers acted
pursuant to a municipal policy or custom.”).
Furthermore, however, even if Doe had stated a claim under Count One, the
court would still dismiss Count Two for failure to allege facts sufficient to satisfy the fifth
element of a Monell claim, i.e., “that an official policy of the municipality caused the
constitutional injury.” See Roe, 542 F.3d at 36. This fifth element can be satisfied by
showing “(1) the existence of an official policy; (2) that an official with final policy-making
authority took action or made a specific decision that caused the deprivation, or (3) the
deprivation was caused by an unlawful practice amongst subordinate officials that was
so widespread as to imply constructive acquiescence by policy-making officials.”
Rogers v. City of New Britain, 189 F. Supp. 3d 345, 358 (D. Conn. 2016). In essence,
the plaintiff must allege that, “through its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v.
Brown, 520 U.S. 397, 404 (1997).
Doe does not argue that there was an official policy or that an official with final
policy-making authority took action that caused the deprivation. For example, the
Complaint does not allege that Principal Longey or Vice Principal Clark are
policymakers for the Enfield Board of Education, only that they implement the policies
and are responsible for the welfare of the students.6 See Compl. at ¶7 4–5. Rather,
Doe argues, under the third approach, that the Enfield Board of Education had a

6 The court finds it unnecessary to decide whether Doe has alleged that Superintendent
Schumann is an official with final policymaking authority, see Compl. at ¶ 3, because Doe has not alleged
any actions or decisions taken by Superintendent Schumann.

24

“custom or policy of not addressing and remedying safety concerns related to
construction within the building, safety concerns related to the placement of a
dangerous student in their population, and safety concerns regarding the vulnerabilities
of special education students.” Compl. at ¶ 63. Doe further argues that the Enfield
Board of Education failed to properly train and supervise its employees. See id. at ¶ 62.
A municipality has a policy or custom causing the constitutional injury when it is
“faced with a pattern of misconduct and does nothing, compelling the conclusion that [it]
has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” Reynolds v.
Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). To allege a policy or custom for failure to
train or supervise, the plaintiff must allege that “the need to act is so obvious, and the
inadequacy of current practices so likely to result in a deprivation of federal rights, that
the municipality or official can be found deliberately indifferent to the need.” Id. This
requires the plaintiff to allege that: (1) “a policymaker knows to a moral certainty that
[his] employees will confront a given situation”; (2) “the situation either presents the
employee with a difficult choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling the situation”; and (3) “the
wrong choice by the city employee will frequently cause the deprivation of a citizen’s
constitutional rights.” Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992)
(internal quotation marks omitted).
The Complaint has not alleged facts sufficient to state a claim either of a custom
or of a failure to train or supervise. The Complaint does not allege that there was any
pattern of misconduct or history of employees mishandling the situation. It alleges
merely that Student A had a history of violent behavior about which the defendants

25

knew or should have known, see Compl. at ¶ 14, but it does not allege that Student A
engaged in prior acts of violence while at Enfield High School or that the defendants or
other school employees mishandled any prior acts of violence that did occur.
Additionally, the Compliant does not identify any policymaker who knew to a moral
certainty that the staff at Enfield High School would confront a situation of sexual
assault. Nor does it allege that this situation would have been the sort of decision that
training or supervision would have improved.
Furthermore, “[a] single incident alleged in a complaint, especially if it involved
only actors below the policymaking level, generally will not suffice to raise an inference
of the existence of a custom or policy.” Dwares, 985 F.2d at 100; see also Gantt, 2017
WL 1192889, at *7 (“Normally, a custom or policy cannot be shown by pointing to a
single instance of unconstitutional conduct by a mere employee of the municipality.”).
Here, the Complaint alleges at most one instance of misconduct, which occurred when
Student A sexually assaulted Doe. Additionally, as noted above, the Complaint has not
alleged that Principal Longey or Vice Principal Clark are policymakers for the Enfield
Board of Education. See Compl. at ¶¶ 4–5. Thus, the Complaint’s allegation of a single
incident of potential misconduct is insufficient to establish a custom or policy of the
Enfield Board of Education that caused a constitutional injury to Doe.
Accordingly, Count Two is dismissed without prejudice to replead.
C.

State Law Claims (Counts Three, Four, and Five)

Counts Three, Four, and Five raise state law claims of negligence, negligent
supervision, and negligent infliction of emotional distress. See Compl. at ¶¶ 68–84.
Because the court has dismissed Counts One and Two, the court declines to exercise

26

supplemental jurisdiction over these claims, pursuant to section 1367(c)(3) of title 28 of
the United States Code.7 See 28 U.S.C. § 1367(c)(3) (2016).
Section 1367(c)(3) permits a district court to “decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it
has original jurisdiction.” Id. “Once the district court’s discretion is triggered under §
1367(c)(3), it balances the traditional values of judicial economy, convenience, fairness,
and comity, in deciding whether to exercise jurisdiction.” Kolari v. New YorkPresbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (internal quotation marks and
citations omitted). The Second Circuit has instructed that, “in the usual case in which all
federal-law claims are eliminated before trial, the balance of factors will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Id. (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). In this case, the court
has dismissed all of Doe’s federal claims in Counts One and Two, and the balance of
factors, including judicial economy, convenience, fairness, and comity, see id., point
toward declining jurisdiction. As the case is still in the early stages of litigation,
significant judicial resources have not yet been expended in briefing and considering
these state law claims, which are more appropriately decided by the state court.
Accordingly, Counts Three, Four, and Five are dismissed without prejudice to the
plaintiff bringing the claims in this court if she repleads and states a claim under Count
One or Count Two or, alternatively, in state court.

7 The court notes that the defendants’ Motion to Dismiss does not address Counts Three, Four,
and Five of the Complaint. The court, however, declines to exercise supplemental jurisdiction over these
claims sua sponte. See Doninger v. Niehoff, 594 F. Supp. 2d 211, 229 (D. Conn. 2009), aff'd in part,
rev'd in part on other grounds, 642 F.3d 334 (2d Cir. 2011) (dismissing sua sponte state law claims
because the court declined to exercise supplemental jurisdiction); Graves v. Goodnow Flow Ass'n, Inc.,
No. 8:16-CV-1546, 2017 WL 4326073, at *11 (N.D.N.Y. Sept. 27, 2017) (same).

27

V.

CONCLUSION
For the reasons stated above, the Motion to Dismiss is GRANTED. The

Complaint is dismissed without prejudice to replead.
SO ORDERED.
Dated at New Haven, Connecticut this 6th day of June, 2018.

/s/ Janet C. Hall
________
Janet C. Hall
United States District Judge

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