Roges et al v. Boston Public Schools et al

Filing 30

Judge Richard G. Stearns: ORDER entered granting in part and denying in part 11 Motion to Dismiss for Failure to State a Claim (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-13471
MARIA ROGES, for herself, and as Parent and Next Friend of N.H.;
KENNETH HAWKES, for himself and as Parent and Next Friend of N.H.;
and N.H., a minor disabled child,
by his parents Maria Roges and Kenneth Hawkes
v.
BOSTON PUBLIC SCHOOLS, JOHN MCDONOUGH, Superintendant;
SCHOOL COMMITTEE, MICHAEL O’NEIL, chairperson; OFFICE OF
SPECIAL EDUCATION AND STUDENT SERVICES, CATHERINE
CONSTANT, Executive Director; and BUREAU OF SPECIAL EDUCATION
APPEALS
MEMORANDUM AND ORDER
ON DEFENDANT BOSTON PUBLIC SCHOOLS’
MOTION TO DISMISS
April 17, 2015
STEARNS, J.
Maria Roges, whose son N.H. is autistic, has, along with her husband,
Kenneth Hawkes, waged a protracted campaign to persuade the Boston
Public Schools (BPS) to provide an appropriate educational placement for
N.H. The campaign began when N.H. was 14 years old. He has now turned
18. Since age 14, N.H. has been tutored at home at the expense of BPS. The
parents and BPS agree that this is not the appropriate educational
placement for N.H. They agree on little else. The court became involved in

September of 2014, when Roges and Hawkes, proceeding pro se, brought
suit against the named defendants. Before the court is a motion brought by
BPS to dismiss the individual defendants and certain of the damages
claims.
BACKGROUND
In the Board of Special Education Appeals (BSEA) decision, affirming
the position of BPS, N.H. “is described as a likeable teenager who enjoys
many interests, including riding his bicycle and scooter, building with
Legos, reading history books, and using a computer or hand-held device for
many activities including games, e-books, educational programs, Internet
research and social media.” BSEA Decision #1308779 (BSEA Dec.) at 5 ¶ 2.
N.H. was diagnosed with autism at age three and has been attending BPS
schools since that time. Id. at 5 ¶¶ 1 & 3. N.H. was placed in a mainstream
classroom for first grade and continued in integrated classrooms through
the seventh grade. Id. at 5 ¶ 5.
Seventh grade (the 2010-2011 school year) was N.H.’s last in-school
placement. During that year, N.H. attended classes at Harbor Pilot Middle
School. Am. Compl. ¶ 23 and BSEA Dec. at 5 ¶ 6. According to the
Amended Complaint, beginning in December of 2010, the staff of Harbor
School “isolated N.H. for most of each afternoon . . . physically removing

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him from his classroom, during which time the school provided no
educational services to N.H.” Am. Compl. ¶ 23. As a result of this isolation,
N.H.’s behavior began to deteriorate. Id. ¶ 24. On March 31, 2011, N.H.
was forcefully restrained, in violation of his behavior plan, by the staff at
Harbor School. Id. ¶ 25. As a result, N.H.’s behavior further degenerated.
Id. ¶ 28. In April of 2011, N.H. “was involved in one incident of aggression
towards another student” and, a few days later, “a teacher alleged that N.H.
had physically assaulted him.” N.H. received a 1-2 day suspension, which
was later rescinded. BSEA Dec. at 7 ¶ 14 and Am. Compl. ¶ 29. Following
the alleged assault, N.H.’s parents withdrew him from Harbor School, and
at the parents’ request, N.H. was granted a 45-day transitional placement.
Am. Compl. ¶ 29.
The Amended Complaint offers no details of N.H.’s schooling since
2011, but the essentials can be gleaned from the BSEA decision. In the
summer of 2011, BPS provided home instruction to N.H. through a
personal tutor and, later, the services of an Applied Behavior Analysis
(ABA) therapist. BSEA Dec. at 8 ¶¶ 18-20. In the fall of 2011, N.H. was
tested by his providers and by a neuropsychologist selected by his parents.
Id. at 8 ¶ 21. Following this testing, in December of 2011, BPS proposed a
new Individualized Education Plan (IEP) entailing placement of N.H. at the

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Community Academy of Science and Health (CASH).

While CASH is

housed at Harbor School, it is not an integrated setting. Id. at 11 ¶ 33.
N.H.’s parents partially rejected the new IEP in March of 2012. Id. at 11 ¶
34. In early 2012, BPS proposed an alternative placement at West Roxbury
Academy (WRA).

The parents indicated that they would approve the

placement if N.H. reacted favorably to a visit to WRA. In a twist of circular
logic, BPS responded that N.H. could visit WRA only if the parents first
agreed to the placement. A standoff ensued, and the parents ultimately
rejected the placement. Id. at 11 ¶ 35.
By the fall of 2012, N.H. still lacked an acceptable placement. Id. at 11
¶ 37. In November of 2012, BPS refloated the proposal to place N.H. at
CASH, but his parents refused it as too restrictive. Id. at 12 ¶ 38. For the
remainder of the 2012-2013 school year, the parents and BPS discussed
alternative placements for N.H. without reaching an agreement. Id. at 12 ¶
39.
On May 31, 2013, the parents filed a Request for Hearing with the
BSEA. The hearing was postponed several times as BPS and the parents
attempted to resolve their differences. In January of 2013, BPS conducted
a psychological evaluation of N.H. as well as an assistive technology
assessment. Id. at 12 ¶ 42. In January and February of 2014, N.H.’s IEP

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team met to develop a new IEP for N.H. “BPS indicated that it would be
proposing a substantially separate program. Parents stated that they were
seeking a full inclusion placement.” Id. at 13 ¶ 47. In March of 2014, BPS
proposed a “final” IEP that involved placing N.H. at the Boston Community
Leadership Academy in a dedicated classroom. Id. at 13-14 ¶¶ 49-56. On
June 13, 2014, BSEA, in a formal opinion, found that the March 2014 IEP
satisfied BPS’s obligation to provide N.H. with a Free and Appropriate
Public Education (FAPE).
On September 9, 2014, the parents filed a Complaint in this court on
behalf of N.H. (later amended on September 29, 2014) seeking the reversal
of the BSEA decision and the ordering of compensatory occupational,
speech, and Adaptive Physical Education services for N.H. The parents also
ask the court to enjoin BPS from requiring liability waivers as a condition of
providing N.H. with the educational services, to award monetary damages
for the alleged physical and psychological harm caused to N.H. and to them
personally, and to order BPS to offer transitional and vocational services to
N.H. The City of Boston, on behalf of the individually named defendants,
as well as the BPS, the School Committee, and the Office of Special
Education and Student Services, seeks dismissal of any claims arising prior

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to May 31, 2011, all claims against the individually named defendants, and
any claims for monetary compensation.
STANDARD OF REVIEW
To survive a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
quotation marks omitted). Dismissal of a claim is appropriate when a
complaint fails to set forth “factual allegations, either direct or inferential,
respecting each material element necessary to sustain recovery under some
actionable legal theory.” Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.
1997) (citation and internal question marks omitted). In evaluating the
factual allegations of a complaint, the court “must accept all well-pleaded
facts alleged in the [c]omplaint as true and draw all reasonable inferences
in favor of the plaintiff.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
The court may also consider “facts and documents that are part of or
incorporated into the complaint.”

Trans-Spec Truck Serv., Inc. v.

Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).1

These are contained in the Administrative Record (AR) compiled by the
BSEA.
1

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DISCUSSION
I will address the City’s several arguments for dismissal in turn.
Quality of Pleading
The City argues in the first and third instances that the Amended
Complaint should be dismissed because the facts are not “well-pleaded”
within the meaning of Fed. R. Civ. P. 8(a) & (e) and 10(b). While it is true
that pro se plaintiffs must comply with the formal rules of procedure, see
Andrews v. Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir. 1985), a court
will view pleadings drafted by persons unschooled in the law with an
indulgent eye, and “not automatically . . . resolve material ambiguities
against the pleader.” Instituto de Educacion Universal Corp. v. U.S. Dep’t
of Educ., 209 F.3d 18, 23 n.4 (1st Cir. 2000). So it will be here.
Statute of Limitations
The City contends that all claims predating May 31, 2011, are barred
by the IDEA two-year statute of limitations. See 20 U.S.C. § 1415(f)(3)(C).
Plaintiffs argue that they only learned of the forcible restraint of N.H. on
March 31, 2011, in July of 2011. (The statute of limitations under IDEA
does not begin to run until such time as a plaintiff “knew or should have
known about the alleged action that forms the basis of the complaint.” 20
U.S.C. § 1415(f)(3)(C)). The record does not support the parents’ claim in

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this regard. The Amended Complaint states that only “by luck and
extremely careful questioning of N.H.” did the father become aware “of the
restraint.” Id. ¶ 28.

N.H.’s father then (again according to the Amended

Complaint) wrote to the principal and staff of the Harbor School, causing
the School to “amend[] the initial incident report to reveal the use of a
physical restraint.” Id. ¶ 28.

The amendment to the incident report, which

is an exhibit in the BSEA record (the authenticity of which is not disputed),
is dated April 1, 2011. AR at 866 (“Addendum to Incident report dated
3/31/2011”). The inference is inescapable that while N.H.’s parents may
have acquired additional information about the March 31, 2011 event
during the appeal of N.H.’s suspension in July 2011, they were made aware
of the event itself almost immediately after it occurred.
Although IDEA specifies three exceptions to the two-year limitations
period, none of them apply here. If a State has an “explicit time limitation”
for requesting a hearing, it will control. 20 U.S.C. § 1415(f)(3)(C). This is
not the case in Massachusetts. The two-year limitation also does not apply
if the parent failed to request a hearing as a result of “specific
misrepresentations by the local educational agency that it had resolved the
problem forming the basis of the complaint,” or because of “the local
educational agency’s withholding of information from the parent that was

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required under this subchapter to be provided to the parent.” 20 U.S.C. §
1415(f)(3)(D). The Amended Complaint does not allege facts supporting
either the second or the third exception.
Individually Named Defendants & Monetary Damages2
The City’s second and fifth arguments are intertwined and will be
treated together.

The City maintains that, as a matter of law, the

individually named defendants should be dismissed and the City of Boston
substituted as the proper defendant. Moreover, the City argues that all
monetary damages sought against the defendants should be dismissed as
not recoverable under IDEA or “other statutory schemes.” It is “black letter
law that . . . money damages of any sort — are not available in a private suit
under the IDEA.” Diaz-Fonseca, 451 F.3d at 28 (citing Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003)). This is true not only with
regard to the City but also the individually named defendants: “No claim for

In the Amended Complaint N.H.’s parents state: “Plaintiffs, as
parents of N.H. have suffered emotionally as a result of the actions of
Boston Public Schools, and suffered lost earnings to time spent meeting
and corresponding with school administrators to resolve N.H.’s return to
school, accompanying N.H. to evaluations, and preparing for a hearing at
the BSEA.” Am. Compl. ¶ 32. The First Circuit has squarely held that
compensatory damages such as “those for lost wages and emotional
distress, are simply not available [under IDEA] as a matter of law.” DiazFonseca v. Puerto Rico, 451 F.3d 13, 32 (1st Cir. 2006). Consequently, to
the extent that paragraph 32 of the Amended Complaint is construed as a
prayer by the parents for monetary damages, it will be dismissed.
2

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monetary relief can thus be stated against individual defendants under
IDEA.” Id. at 35; see also Taylor v. Altoona Area Sch. Dist., 513 F. 2d 540,
548-555 (W.D. Pa. 2007).
Outside of the federal IDEA context, Massachusetts tort law might be
seen as an avenue by which N.H. could seek compensation for injuries he
suffered as a result of being forcibly restrained in March of 2011 (although
the Amended Complaint does not identify the school personnel
responsible). However, under the Massachusetts Tort Claims Act, to
recover damages for the negligent acts of state or municipal officials, a
claimant must present a claim “in writing to the [defendant] within two
years after the date upon which the cause of action arose.” Mass. Gen. Laws
ch. 258, § 4.

“Presentment is . . . a statutory condition precedent to

recovery.” Vasys v. Metro. Dist. Comm’n, 387 Mass. 51, 55 (1982). Strict
compliance is the rule. Richardson v. Dailey, 424 Mass. 258, 261-262
(1997). “Presentment ensures that the responsible public official receives
notice of the claim so that that official can investigate to determine whether
or not a claim is valid, preclude payment or inflated or nonmeritorious
claims, settle valid claims expeditiously, and takes steps to ensure that
similar claims will not be brought in the future.” Lodge v. Dist. Attorney
for the Suffolk Dist., 21 Mass. App. Ct. 277, 283 (1985).

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The parents

respond that they made the required presentment in the body of their
request for a hearing before the BSEA. Pl.’s Opp. at 4 ¶ 6. The request,
however, (assuming its adequacy) was submitted on May 31, 2013, more
than two years after the alleged tort occurred.
The parents in their opposition also reference a Ninth Circuit case in
which plaintiffs, in addition to IDEA violations, alleged violations “of their
constitutional rights to substantive due process and equal protection under
§ 1983, the Rehabilitation Act, the Americans with Disabilities Act and state
law.” Eason v. Clark County Sch. Dist., 303 F.3d 1137, 1139 (9th Cir.
2002). The First Circuit, however, has foreclosed any resort to alternative
pleading by holding that “reconstituted IDEA claims cannot be brought
under other federal statutes in an attempt to secure remedies that are
unavailable under the IDEA.” D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d
26, 38 (1st Cir. 2012) (citing Diaz-Fonseca, 451 F.3d at 29). To the extent
that the Amended Complaint asserts a failure on the part of BPS to provide
N.H. with an adequate FAPE (based on an appropriate school placement),
the remedies are limited to those offered under the IDEA.
It is true that, “the IDEA does not restrict rights and remedies that
were already independently available through other sources of law.” DiazFonseca, 451 F.3d at 29. “[A] discrimination claim under the Rehabilitation

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Act or the ADA involving a denial of a FAPE is not coextensive with an
IDEA claim.” Elizabeth B., 675 F.3d at 40. Thus, “Diaz-Fonseca does not
bar a plaintiff from bringing a discrimination claim based on a denial of
FAPE in conjunction with an IDEA claim, because the discrimination claim
involves the additional element of disability-based animus. As such, the
discrimination claim does not ‘turn[] entirely on the rights created by
statute in the IDEA.” Id. at n.8 (quoting Diaz-Fonseca, 451 F.3d at 29).
However, the obstacle the parents face here is not dissimilar from the
defect that bars any pursuit of relief under the Tort Claims Act: a
jurisdictional prerequisite of a complaint under the ADA (or the
Rehabilitation Act) is the filing of an administrative charge with the EEOC
within 180 days of the alleged discriminatory act or acts. See 42 U.S.C. §
2000e; see also Bonilla v. Muebles J.J. Alvarez Inc., 194 F.3d 275, 277-278
(1st Cir. 1999).3 It is clear that in N.H.’s case, this jurisdictional requisite
was never met.
What remains then is the core issue raised by the Amended
Complaint: Did N.H. receive the FAPE to which he was entitled; that is, was

I also note that neither the ADA nor the Rehabilitation Act
authorizes an assessment of damages against individual defendants,
Taylor, 513 F.2d at 555-563. Nor may the jurisdictional requisites of the
statutes be circumvented by repackaging claims under § 1983. See id. at
555 and 563 and Elizabeth B., 675 F.3d at 44.
3

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he prescribed an IEP “reasonably calculated to confer a meaningful
educational benefit”? Sebastian M. v. King Philip Reg. Sch. Dist, 685 F.3d
79, 84 (1st Cir. 2012). And, if not, what are the remedies available to him?
This is a matter to be resolved on the record by way of summary judgment.
As with other administrative appeals, a motion for summary judgment in
an IDEA case is simply a vehicle for deciding the relevant issues; thus, the
non-moving party is not entitled to the usual inferences in its favor. Id. at
84-85.4

Review basically follows the standards of the Administrative
Procedure Act. Amann v. Town of Stow, 991 F.2d 929, 931 (1st Cir. 1993)
(reliance is primarily on the administrative record). Deference is to be
given when reviewing IDEA cases to the policy judgments of state and local
education officials. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206 (1982); see also Lessard v. Wilton
Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 24 (1st Cir. 2008) (“[J]udicial
review falls somewhere between the highly deferential clear-error standard
and the non-deferential de novo standard.”).
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ORDER
For the foregoing reasons the City of Boston’s motion to dismiss is
ALLOWED as follows. All claims arising from events prior to May 31, 2011
are DISMISSED. All claims against individual defendants are DISMISSED
with prejudice and the City of Boston is substituted in their stead as the
appropriate defendant. All claims for relief, monetary or otherwise, not
afforded by the IDEA are also DISMISSED. The parties will abide by the
following scheduling order:
(1)

The parties will have 31 days (until May 18, 2015) to agree on
any supplements to the record;

any disputes regarding the

content of the record may be brought to the court for resolution
prior to that date;5
(2)

The parties will then have 30 days (until June 17, 2015) to file
for summary judgment;

(3)

The parties will then have 21 days to file replies (until July 8,
2015).

The court notes a motion filed by the plaintiffs on April 15, 2015
(Dkt # 29) to supplement the Administrative Record and the joint
statement filed by the parties on February 6, 2015 (Dkt # 18). The court
found the schedule submitted on February 6, 2015 to be too protracted and
substitutes the one set out here. As a result, the plaintiffs’ motion is now
moot. Plaintiffs should confer with the City, supplement the record as
agreed, and the parties should notify the court of any remaining disputes.
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The court is sensitive to the need to resolve the matter of an
appropriate placement for N.H. prior to the start of the 2015-2016 school
year (in late August/early September).

If the parties are amenable to

submitting the dispute to the court sponsored mediation program
conducted by the Magistrate Judges, they should notify the court promptly
to permit any necessary adjustments to the scheduling order.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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