Lee et al v. Boston Public Schools

Filing 30

District Judge Leo T. Sorokin: ORDER entered The Court ALLOWS the 6 Motion to Dismiss for Count I, and Count I is thus DISMISSED. In all other respects, the Court ADOPTS the Report and Recommendation, and DISMISSES Counts II, V, VI, and VIII. If the Lees wish to file a motion for leave to amend, they shall do so within fourteen 14 days.(See attached Order)(Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DENISE LEE, Individually and on behalf
of a minor child named D.P., and
JOSEPH LEE
Plaintiffs,
v.
BOSTON PUBLIC SCHOOLS,
Defendant.

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Civil No. 15-10811-LTS

ORDER ON REPORT AND RECOMMENDATION (DOC. NO. 26)
February 16, 2016
SOROKIN, J.
Defendant Boston Public Schools (“BPS”) objects (Doc. No. 29) to Magistrate Judge
Cabell’s Report and Recommendation (Doc. No. 26) that the Court deny BPS’s Motion to
Dismiss for Failure to State a Claim (Doc. No. 6) insofar as it pertains to the only federal claim
asserted in the Complaint. After de novo review, the Court reaches a different conclusion on
Count I for the following reasons.
At issue is whether Plaintiffs Denise Lee, individually and on behalf of a minor child
named D.P, and Joseph Lee (collectively “The Lees”) have stated a claim that BPS, during the
relevant time period of 2005-2011, had a policy, practice or custom of covering up allegations of
sexual abuse. See Doc. No. 1-1 ¶ 19. No party disputes that such a policy would violate federal
law. BPS contends, however, that the Lees failed to adequately plead such a claim. To do so,
they must “show[] that, through its deliberate conduct, [BPS] was the moving force behind the
injury alleged. [The Lees] must identify a municipal policy or custom that caused [them]

injury.” Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011) (internal citations and
quotations omitted). Plaintiffs failed to state a claim.
The Lees have alleged that “[Principal] Bolt and her superiors” transferred a teacher,
LaShawn Hill, to cover up his sexual abuse. 1 Doc. No. 1-1 ¶ 19. Besides the conclusory
assertion that this transfer was “part of BPS’s policy and custom of covering up allegations of
sexual abuse of students by BPS employees,” id. ¶ 18, nothing in the Amended Complaint
supports municipal liability. Nowhere do the Lees allege the nature, scope, terms, origin, or
duration of the policy and custom. Nor do they allege the application of the policy and custom in
any instance other the one circumstance set out in the Amended Complaint. 2 Put another way,
Plaintiffs have plausibly alleged the transfer of one teacher to cover up a prior incident of sexual
abuse, but they have not plausibly alleged either that BPS regularly transferred teachers to cover
up sexual abuse or had a policy and custom of doing so.
This failure alone does not, however, necessarily compel dismissal. “Although liability
may not be imposed on a municipality for a single instance of misconduct by an official without
final policymaking authority, liability may be imposed on a municipality for ‘a single decision

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The Lees very nearly failed to allege that Principal Bolt, or anyone, knew of Hill’s sexual abuse
of students prior to December 2011. Of course, without such knowledge the claim would fail.
Most of the Amended Complaint very carefully pleads around advancing this allegation. See,
e.g., Doc. No. 1-1 ¶ 8 (alleging that Bolt was the principal “at the time of the incident”); id. ¶ 10
(alleging that state law required Bolt to report “abuse of a child under 18”); id. ¶ 12 (alleging that
the “allegation of abuse against Mr. Hill was never reported,” without ever specifying when such
allegation was made). However, the Lees do allege that “Ms. Bolt and her superiors
intentionally made the decision to deal with the allegations of Mr. Hill’s sexual abuse inhouse, . . . rather than report the allegations to” state or law enforcement, “in order to cover up
his sexual abuse.” Id. ¶ 19. While this suffices to allege knowledge of the abuse prior to Hill’s
transfer, the Court notes the anomaly of the Lees’ failure to allege directly that Principal Bolt
knew of Hill’s misconduct prior to the transfer.
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Indeed, as the Report and Recommendation notes, “state law require[d] administrators to report
allegations of child abuse of minors.” Doc. No. 26 at 6.
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by a final policymaker.’” Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 769 (1st Cir.
2010) (quoting Welch v. Ciampa, 542 F.3d 927, 942 (1st Cir. 2008)). State law governs whether
an official is a policymaker. Walden v. City of Providence, 596 F.3d 38, 56 (1st Cir. 2010).
In analyzing Massachusetts’s statutory scheme, a then-Massachusetts Superior Court
judge observed that “the school committee makes policy; the school superintendent and
principals implement those policies.” McLaughlin v. City of Lowell, 8 Mass. L. Rptr. 343, at
*13-14 (Mass. Super. Ct. Apr. 3, 1998) (Gants, J.); accord Doe v. Town of Stoughton, 12-CV10467-PBS, 2013 WL 6498959, at *3 (D. Mass. Dec. 10, 2013) (quoting McLaughlin). The
Report and Recommendation discounted this by noting that Principal Bolt allegedly made the
decision to transfer Hill after consulting with “her superiors,” people who presumably were in
policymaking positions. Doc. No. 26 at 6. While some sessions of this Court have held that
superintendents are policymakers for municipal liability purposes, see Bowler v. Town of
Hudson, 514 F. Supp. 2d 168, 184 (D. Mass. 2007); Lewis v. City of Boston, No. 00-11548DPW, 2002 WL 523910 (D. Mass. Mar. 29, 2002); but see Doe v. Bradshaw, No. 11-11593DPW, 2013 WL 5236110 (D. Mass. 2013) (“It seems implausible that [the superintendent] could
act unilaterally as the final policymaking official without the concurrence of some number of
other School Committee members, or a delegation of authority by the Committee.”), this alone
cannot save the claim.
Principal Bolt is plainly not the superintendent. Nor do the Lees anywhere in the
Amended Complaint identify these “superiors,” let alone allege that they are school committee
members or the superintendent. Cf. Doe, 2013 WL 6498959, at *4 (“Regardless of whether a
superintendent can act as a final policymaker under state law, it is clear that an assistant principal
or guidance counselor is not one.”). Nor do they allege any facts to support the inference that

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these individuals are themselves involved in making policy. This bare allegation of unidentified
superiors in unexplained roles cannot sustain a claim for municipal liability, especially combined
with the vagueness of the knowledge and policy allegations. See Freeman v. Town of Hudson,
714 F.3d 29, 38 (1st Cir. 2013) (affirming dismissal of a municipal liability claim when the
complaint “reference[d] no state or local laws establishing the policymaking authority of any
individual or group of individuals,” and “allege[d] misconduct from many separate actors, but
g[ave] no guidance about which acts [were] properly attributable to the municipal authority.”).
Accordingly, the Court ALLOWS the Motion to Dismiss for Count I, and Count I is thus
DISMISSED. In all other respects, the Court ADOPTS the Report and Recommendation, and
DISMISSES Counts II, V, VI, and VIII. If the Lees wish to file a motion for leave to amend,
they shall do so within fourteen days. The Court notes that Count I provided the only basis for
federal jurisdiction. See Rodriguez v. Doral Mortg.Corp., 57 F.3d 1168, 1177 (1st Cir. 1995)
(“As a general principle, the unfavorable disposition of a plaintiff’s federal claims at the early
stages of a suit, well before the commencement of trial, will trigger the dismissal without
prejudice of any supplemental state-law claims.”).

SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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