Thomas, Jr et al v. Chelmsford School Committee et al

Filing 64

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. The Court ALLOWS in part and DENIES in part the motions to dismiss (Docket Nos. 28 , 30 ).On Count I, a § 1983 claim against the municipal defendants, the plaintiffs fail to state a claim for violations of substantive due process, the Equal Protection Clause, and procedural due process. The municipal defendants' motion to dismiss, however, is DENIED to the extent that the plaintiffs state a Monell claim for First Amendment retaliation against the municipal defendants.On Count II, a Title IX claim against the municipal defendants, the municipal defendants motion to dismiss is DENIED.On Count III, an IDEA claim against the municipal defendants, the municipal defendants m otion to dismiss is ALLOWED.On Count IV, a § 1983 claim against the individual defendants, the plaintiffs fail to state a claim for violations of substantive due process, the Equal Protection Clause, and procedural due process. The plaintiffs st ate a claim for First Amendment retaliation by defendants Tiano, Moreau, Caliri, Doherty, Siragusa, Kender, and Cole, but not by Rich. The Court allows qualified immunity as to Tiano, Moreau, Caliri, and Doherty as to the retaliation claim but denies qualified immunity as to Siragusa, Kender, and Cole. The individual defendants motion to dismiss is ALLOWED as to Tiano, Moreau, Caliri, Doherty, and Rich but DENIED as to Siragusa, Kender, and Cole.On Count V, a § 1983 conspiracy claim against the individual defendants, the individual defendants' motion to dismiss is ALLOWED.On Count VI, a claim for violation of the Massachusetts Declaration of Rights against the individual defendants, the individual defendants' motion to dismis s is ALLOWED.On Count VII, a claim for violation of the Massachusetts Civil Rights Act against the individual defendants, the individual defendants motion to dismiss is DENIED as to Siragusa and Kender, but otherwise ALLOWED.On Count VIII, a claim fo r conspiracy to violate the Massachusetts Civil Rights Act against the individual defendants, the individual defendants motion to dismiss is ALLOWED.On Count IX, a claim for defamation against the individual defendants, the individual defendants moti on to dismiss is ALLOWED.On Count X, a claim for intentional infliction of emotional distress against the individual defendants, the individual defendants motion to dismiss is DENIED with respect to Siragusa and Kender, but otherwise ALLOWED.On Count XI, a claim for negligent infliction of emotional distress against the municipal defendants, the municipal defendants motion to dismiss is ALLOWED.On Count XII, a claim for civil conspiracy against the individual defendants, the individual defendant s motion to dismiss is ALLOWED.On Count XIII, a claim for negligence against the municipal defendants, the municipal defendants motion to dismiss is ALLOWED as to the CSC but DENIED as to the Town.On Count XIV, a claim for loss of consortium against all defendants, the municipal defendants motion to dismiss is ALLOWED. The individual defendants motion to dismiss is DENIED as to Siragusa and Kender, but otherwise ALLOWED.In sum, the Court dismisses all claims against Tiano, Caliri, Moreau, Dohert y, and Rich. The surviving claims against the Town and/or CSC are Count I (First Amendment retaliation), Count II (Title IX) and Count XIII (negligence).The surviving claims against the individual defendants Siragusa and Kender are Count IV (First Am endment retaliation), Count VII (MCRA), Count X (intentional infliction of emotional distress), and Count XIV (loss of consortium).The surviving claim against the individual defendant Cole is Count IV (First Amendment retaliation). (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
MATTHEW A. THOMAS, JR., KRISTINE
)
THOMAS, and MATTHEW A. THOMAS,
)
)
Plaintiffs,
)
)
v.
)
)
TOWN OF CHELMSFORD, CHELMSFORD
)
Civil Action
SCHOOL COMMITTEE, FRANK TIANO,
)
No. 16-11689-PBS
SCOTT MOREAU, BRUCE RICH, CHARLES )
CALIRI, JEFFERY DOHERTY, ANTHONY
)
SIRAGUSA, MICHELLE KENDER,
)
BENJAMIN COLE, and MICHAEL MOEs
)
1–4,
)
)
Defendants.
)
______________________________
)
MEMORANDUM AND ORDER
July 25, 2017
Saris, C.J.
This suit alleges that the Chelmsford public school system
and its employees failed to take sufficient steps to protect a
student from a sexual assault at a school-sponsored varsity
football camp and from subsequent bullying and harassment by
teachers and other students at Chelmsford High School (“CHS”).
The individual defendants and the municipal defendants move
separately to dismiss.
The Court ALLOWS in part and DENIES in part the motions to
dismiss (Docket Nos. 28, 30).

1

BACKGROUND
I.

Parties
The plaintiffs are Matthew A. Thomas, Jr. (“Matthew”), his

father (“Mr. Thomas”), and his mother (“Mrs. Thomas”).
The municipal defendants are the Town of Chelmsford
(“Town”) and the Chelmsford School Committee (“CSC”). The
individual defendants are Frank Tiano, the former Superintendent
of Chelmsford Public Schools (“CPS”); Charles Caliri, the former
Principal of CHS; Jeffery Doherty, the former Dean of CHS; Scott
Moreau, the athletic director (“A.D.”) of CHS; Bruce Rich, the
former head coach of the football team at CHS; and Anthony
Siragusa, Michelle Kender, and Benjamin Cole, teachers at CHS.
II.

Factual Allegations
With all reasonable inferences are drawn in the plaintiffs’

favor, the complaint alleges the following facts, many of which
are disputed.
A.

The Sports Culture

For years, CHS embraced a sports culture that put winning
ahead of everything else and encouraged bullying and harassment
of student-athletes to make them “tough enough” to win
championships. First Amended Complaint (“Compl.”) ¶ 17. The
Town, the CSC, and Superintendent Tiano knew about and condoned
this “winning” sports culture, in which ordinary rules did not
apply to star athletes. Id.
2

In September 2012, Matthew enrolled as a freshman at CHS.
Id. ¶ 30. Matthew was a special-needs student with an
Individualized Education Plan (“IEP”) under the federal
Individuals with Disabilities Education Act (“IDEA”). Id. In
October 2012, during freshman football, three students -- K.M.,
G.C., and E.S. -- forced another student to urinate in Matthew’s
cleats. Id. ¶ 32. The Thomas family reported the incident to
A.D. Moreau, and the three students were suspended for one game.
Id. ¶ 34.
B.

The Rape at Football Camp

From August 21 to 24, 2013, CHS held its annual football
camp at Camp Robindel in Moultonborough, New Hampshire. Id.
¶ 39. The students stayed in bunkhouses with no regular adult
supervision, despite CHS having knowledge of hazing and bullying
that took place at past football camps. Id. ¶¶ 19, 20, 24, 40.
In the bunkhouse, Matthew was hit in the face with powder, and
the video recording was posted to social media. Id. ¶ 42.
Matthew had his food, iPod, and cellphone stolen. Id. ¶¶ 42, 44.
Matthew was pelted with milk and repeatedly picked up by his
underwear while others laughed. Id. ¶ 42.
Matthew reported the stolen iPod to Coach Rich, who took no
action. Id. ¶ 43. Matthew reported the stolen cellphone to a
coach, who came into the bunkroom and demanded, “Who took the

3

phone?” Id. ¶ 44. K.M. returned the cellphone and was not
disciplined. Id.
On August 23, 2013, Matthew was on his bunk when Z.D. came
over to him, held him down, and started twisting his nipples.
Id. ¶ 46. K.M. joined in and lifted Matthew’s feet so that he
could not move. Id. G.C. grabbed Matthew by his arms and legs,
and they dragged him into the shower area. Id. G.C. and Z.D.
held Matthew down while K.M. tried to insert the end of a
broomstick into Matthew’s anus. Id. Matthew screamed and
resisted, but nobody came to his assistance. Id. Then, K.M. and
Z.D. held down Matthew while G.C. inserted the end of the
broomstick into Matthew’s anus. Id. ¶ 47. No adult was nearby
during this approximately twenty-minute episode. Id. ¶ 49.
Later that day, another student threw Matthew’s cellphone
to K.M., who rubbed the cellphone on his testicles and threw it
back to Matthew. Id. ¶ 50. K.M. then came over to Matthew,
placed his knee on Matthew’s chest, exposed his genitalia, and
rubbed his testicles on Matthew’s chin. Id.
That evening, Matthew told his parents about some of his
problems at camp. Id. ¶ 51. Mr. Thomas started driving out to
Camp Robindel, but Coach Rich called him and told him that he
wanted the opportunity to handle the issues himself. Id. Mr.
Thomas agreed. Id. When Coach Rich raised the issue with the
students, K.M. yelled at Matthew and called him a “liar.” Id.
4

¶ 52. Coach Rich told K.M. to just apologize, which K.M. did.
Id.
On August 24, 2013, Coach Rich told Mr. Thomas that the
issues were taken care of. Id. ¶ 53. Coach Rich also told Mr.
Thomas that K.M. was one of his “special players” who needed to
remain on the team because sports helped keep him out of
trouble. Id.
That night, Matthew told his parents about the broomstick
incident. Id. ¶ 55. On August 25, 2013, Mrs. Thomas emailed
Coach Rich to demand that he investigate. Id. ¶ 57. In the
email, Mrs. Thomas told Coach Rich that if the issue was not
adequately resolved by noon the next day, she would report to
the police, the CSC, and Superintendent Tiano. Id. Later that
night, Mrs. Thomas spoke with Coach Rich, who apologized. Id.
¶ 58.
On the morning of August 26, 2013, Mrs. Thomas forwarded
her previous day’s email to A.D. Moreau and stated that she
would report to the police, the CSC, and Superintendent Tiano if
she did not hear from him or Coach Rich by noon. Id. ¶ 59. That
morning, A.D. Moreau called Mrs. Thomas and stated that CHS
would look into the incident but that he did not want it
reported to the police. Id. ¶ 60. His words were: “Don’t go to
the police. You need to give us more time.” Id. The Thomas
family agreed. Id.
5

That afternoon, while the Thomas family was waiting for a
meeting with A.D. Moreau, Coach Rich came by and told Matthew,
“You will get through this. We will get through this. This is
part of growing up.” Id. ¶ 61. The Thomas family then met with
CHS Deans Jeffery Doherty, Joshua Blagg, and Heather Galante.
Id. ¶ 63. The Thomas family explained to the Deans what had
happened to Matthew. Id. The Deans instructed the Thomas family
not to speak to anyone about the matter. Id. The Deans did not
explain how they would handle the situation other than to say
the perpetrators would not be in any of Matthew’s classes. Id.
CHS did not report the incident to the police. Id. ¶ 64.
On August 27, 2013, the Thomas family reported the Camp
Robindel incident to the police. Id. ¶ 66. The Middlesex
District Attorney’s Office contacted the Moultonborough Police
Department and started an investigation. Id. ¶ 67.
On August 28, 2013, CPS took written statements from two of
the students involved in the Camp Robindel incident. Id. ¶ 68.
One of them wrote that Matthew was lying about everything. Id.
The other admitted that he hit Matthew with a broomstick around
“his butt/back of thigh” but he “didn’t see that it had left a
mark.” Id. He wrote, “I am not proud of what I did, but I am
also not sorry for what I did to Matt. Thinking back on it I was
teaching him a lesson.” Id.

6

On August 30, 2013, Deans Doherty, Blagg, and Galante
produced a “Summary Report” on the school’s internal
investigation into the Camp Robindel incident. Id. ¶ 74. This
report allegedly “whitewashed” the incident by failing to
describe the details of the broomstick incident, how Matthew
came to be lying prone on the floor of the bathroom, and why
there was no adult supervision. Id. ¶ 75.
C.

Post-Incident Bullying and Harassment

Around this time, other CHS students began to hear about
the camp incident. Id. ¶ 71. Students began to make comments
about how Matthew was lying and started to call him
“Broomstick,” in reference to the assault. Id. ¶¶ 71, 73.
Comments on the Camp Robindel incident also began to appear on
social media. E.g., id. ¶ 77 (“What’s up with high school boys
sticking stuff up each other’s asses these days?”)
On September 3, 2013, Mrs. Thomas contacted Principal
Caliri to ask how Matthew would be protected at school. Id.
¶ 79. Principal Caliri did not provide any answers. Id.
On September 4, 2013, Matthew went to school and learned
that K.M. was registered in two of his classes. Id. ¶ 80.
Although K.M. was not in school, Matthew was present in both
classes as K.M.’s name was called. Id. The Thomas family
demanded that K.M. be transferred. Id.

7

Various students at school continued to make derogatory
sexual comments to Matthew about the Camp Robindel incident, and
social media postings about the incident continued. E.g., Id.
¶¶ 81 (“Hey Broomstick! How is your asshole? Did it hurt?”), 83
(“You are so annoying you got a pole shoved up your ass at
football camp.”), 88 (“Matt Thomas went to camp a tight end and
came back a wide receiver.”), 108 (“Hey look, is that the kid
that got fucked by the broomstick?”), 120 (students said that
they heard that Matthew was raped with a “big black dildo” and
asked Matthew if he “liked it and if he wanted it again”). Much
of the bullying came from lacrosse players, wrestlers, and
football players. Id. ¶ 131. Students also made threats of
violence against Matthew. Id. ¶¶ 151, 159. The Thomas family
reported these incidents to Dean Doherty throughout the school
year but each time, Dean Doherty took no action and did not
follow up with the family. Id. ¶¶ 81, 82, 83, 104, 108, 120,
152, 160. On one occasion, Dean Doherty told Matthew that
Matthew should report incidents to him, not to his mother. Id.
¶ 81.
The first media report on the Camp Robindel incident
appeared on September 9, 2013. Id. ¶ 85. An unidentified source
told the newspaper that the allegations were of “a very juvenile
nature” although some aspects were “sexual in nature.” Id. Later
that day, Superintendent Tiano emailed the members of the CSC to
8

inform them of the media coverage and to say that CPS did a
“tremendous job” in its internal investigation. Id. ¶ 86. He
also promised to keep the CSC updated on the criminal
investigation. Id. Superintendent Tiano also issued a press
release that stated that CPD “will continue to take seriously
the safety of each and every student under our care.” Id.
On the morning of September 10, 2013, media outlets
appeared at CHS. Id. ¶ 89. Nobody from CPS informed the Thomas
family about the media’s presence, and Matthew arrived at school
wearing a CHS football shirt. Id. Principal Caliri announced
that the media would not approach any student on school grounds
and that no student had to speak with the media. Id. ¶ 91.
Nobody from CHS spoke to Matthew about the media or offered to
help him avoid the media. Id. That afternoon, a reporter
approached Matthew as he exited CHS alone. Id. ¶ 92. Matthew
declined to discuss the Camp Robindel incident and walked away,
but the reporter followed him and continued to ask him
questions. Id. The Thomas family reported the incident to Dean
Doherty and asked how the media was at the CHS entrance. Id.
¶ 93. Dean Doherty responded, “They were not supposed to be. I
guess no one was watching.” Id.
That evening, the CSC had its first meeting since the media
broke the story about the Camp Robindel incident. Id. ¶ 94. A
prepared press release was read, and the CSC made no further
9

comments. Id. This was the only time the CSC addressed the
allegations during the 2013 to 2014 school year, despite
individual members of the CSC being informed at various points
in the year about the difficulties that Matthew was having at
school. Id. ¶ 94, 133.
On September 11, 2013, Matthew was interviewed by the
Middlesex District Attorney’s Office. Id. ¶ 96. Police
investigators had trouble interviewing CPS personnel, however,
because they were uncooperative with the investigation. Id.
¶ 97. For example, the Moltonborough Police Department tried to
set up an interview date but was told that CPS personnel would
be at an away football game. Id. In fact, those particular CPS
personnel were not at the game. Id.
D.

Alleged Misconduct by Teachers and Administrators

On September 12, 2013, Mrs. Thomas met with Dean Doherty.
Id. ¶ 98. K.M., G.C., and Z.D. had been suspended for ten days
and were soon expected to return to school, and the Thomas
family was worried about Matthew’s safety. Id. Dean Doherty
assured Mrs. Thomas that CHS would ensure Matthew’s safety. Id.
The Thomas family also met with Superintendent Tiano to discuss
how Matthew would be protected. Id. ¶ 100. Superintendent Tiano
told Mr. Thomas: “We have teachers in the hallway that monitor
things and he will be fine.” Id. The Thomas family asked that
K.M., G.C., and Z.D. be assigned to the CHS annex, a separate
10

learning area away from the general student body where
problematic students are assigned. Id. ¶ 101. That request was
not granted. Id. In a September 13, 2013 follow-up email, Dean
Doherty told Mrs. Thomas that Matthew could leave class at any
time to speak with him and that “I will be in the hallways
discreetly checking on him, so if something is not going well he
can give a slight shake of his head to signal me.” Id. ¶ 102.
Also on September 13, 2013, Spanish teacher Siragusa
singled out Matthew in front of the whole class and told Matthew
to keep quiet and to stop moving, even though he was causing no
disruption. Id. ¶ 103. Matthew became upset and left class. Id.
After Matthew returned to class, Siragusa had his class
translate from English to Spanish: “Matt went to football camp.
Matt called his parents. Why did Matt call home?” Id. The Thomas
family reported the Siragusa comments to Dean Doherty. Id.
¶ 105. Dean Doherty apologized for Siragusa’s actions, stating
that Siragusa “feels badly for what had happened.” Id. Matthew
was removed from Siragusa’s class and ended up having to repeat
Spanish the following school year. Id. ¶ 106.
On September 16, 2013, K.M., Z.D., and G.C. returned to
school from their suspensions. Id. ¶ 107. They were suspended
from the football team for the season. Id. There was no safety
plan for Matthew, and neither Dean Doherty nor any monitors were

11

keeping watch in the hallways, as Superintendent Tiano and Dean
Doherty had promised. Id.
On September 20, 2013, Superintendent Tiano informed the
CSC that he would not make any further communication to parents
about the Camp Robindel incident “in the absence of any new
information” to avoid generating “another news cycle.” Id.
¶ 109. Superintendent Tiano did not inform the CSC of the
bullying and harassment of Matthew. Id.
On September 30, 2013, Matthew was yelled at by his science
teacher, Kender. Id. ¶ 111. After two other students got into an
argument, Kender took Matthew into the hallway and screamed that
he was an “instigator” who was causing all sorts of “trouble”
and that she “was sick of it.” Id. When Matthew tried to speak,
Kender told him to “be quiet.” Id. The Thomas family reported
the incident to Dean Doherty, who said he would look into it.
Id. ¶ 111. Dean Doherty later told Mrs. Thomas that he had
spoken to Kender and hoped that there would be no further
issues. Id. ¶ 112.
In early October 2013, Moreau swore at Matthew after he
tossed a packet of snacks to a friend. Id. ¶ 113. Moreau yelled,
“No Matt, get the hell out of the hallway and go back to your
fucking locker room!” Id. The incident was reported to CPS. Id.
On November 5, 2013, Mrs. Thomas informed Dean Doherty of
new problems that Matthew was having with Kender, who was
12

questioning his study habits and failing to comply with
Matthew’s IEP. Id. ¶¶ 122–24. Dean Doherty informed Mrs. Thomas
that Matthew would get a peer tutor. Id. ¶ 125.
On November 18, 2013, Kender watched a student hit Matthew
with a shoe in her class. Id. ¶ 126. Kender walked away,
appeared happy, and did not discipline the student. Id. The
Thomas family reported the incident to Dean Doherty, who took no
action. Id.
In November and December 2013, Z.D. made constant vulgar
comments toward two of Matthew’s friends. Id. ¶ 127. The
students reported the incidents to Dean Doherty, who took no
action. Id. ¶¶ 128, 129.
Through the end of 2013 and early 2014, CHS teachers were
falsely told that the criminal case was over and that Matthew
had made everything up. Id. ¶ 132. The complaint does not state
who allegedly made these statements.
In early March 2014, Mr. Thomas contacted A.D. Moreau to
discuss how CHS was going to keep Matthew safe during the
upcoming lacrosse season, as Matthew, K.M., and G.C. all played.
Id. ¶ 134. Moreau responded that since the school had determined
that there was no wrongdoing by K.M., G.C., and Z.D., there was
nothing he could do but that there would be adults in the locker
room. Id. ¶ 137.

13

During lacrosse tryouts, Matthew was mocked and ridiculed
by K.M., G.C., and other players. Id. ¶ 138. K.M. was injured
and was not trying out, but he was still present on the
sideline. Id. The coaches were aware of K.M. and G.C.’s actions
but did nothing to stop them. Id.
On March 19, 2014, Mr. Thomas emailed CPS to express his
concerns about lacrosse tryouts. Id. ¶ 139. A.D. Moreau
responded that coaches were supervising the players, including
from the coaches’ room by the locker room area. Id. ¶ 140. But
the coaches’ room did not have windows and the door was
typically kept closed and locked, so someone inside the coaches’
room would not be able to see or hear what was going on in the
locker room. Id.
After this date, Matthew’s coaches treated him differently
and regularly expressed anger at him. Id. ¶ 141. K.M. was with
the team throughout the season even though he was not playing or
practicing, and he continued to taunt Matthew. Id. ¶ 142.
In April 2014, Z.D. continued making sexually explicit and
threatening comments to two of Matthew’s friends. Id. ¶ 144.
When Dean Doherty received reports about those incidents, Dean
Doherty told one of the students to “man up and try to go to
lacrosse practice” and that the incident was just “boys just
being boys.” Id. ¶ 145.

14

Harassment of Matthew increased in frequency and severity
in late April 2014. Id. ¶ 149. Matthew reported to Dean Doherty
that he perceived threatening actions not only from Z.D. and his
friends, but also Cole, a teacher. Id. ¶¶ 149, 151, 153–56, 158.
Specifically, there was one occasion when Matthew was in the CHS
library with friends, and Cole approached and started talking to
Matthew’s friends while staring intently at Matthew. Id. ¶ 154.
On many days, Cole stood outside Matthew’s history class and
intently stared at Matthew and his friends as they entered
history class. Id. ¶ 155. On one occasion outside of school,
Cole approached a friend of Matthew who was fishing and said
“It’s better to have a pole in your hands than up your ass.” Id.
¶ 156.
At lacrosse practice, a senior captain tried to take
Matthew out each time they lined up against each other in a
drill, to cheers of the team. Id. ¶ 159. On one occasion, the
captain went up to Matthew, yanked his facemask, and yelled in
his face that he “was going to fucking kill him” if Matthew did
not quit the team. Id. These incidents were reported to the
school and to the coach, who took no action. Id. ¶ 160. Soon
thereafter, Matthew was suspended for two games, with the given
reason being an unspecified incident that the captain supposedly
reported to the coach. Id. ¶ 161.

15

On May 5, 2014, Kender interrupted a conversation that
Matthew was having with a classmate who had gotten into trouble.
Id. ¶ 163. Kender said, “Oh, Mattie, you throw people under the
bus.” Id. Kender told Matthew that he “had bad character” and
told him that he should have talked to the person instead of
“telling on him.” Id. She then gave a speech to the class
suggesting that “children who report something are snitches and
are the worst type of person.” Id. Mrs. Thomas sent an email to
Dean Doherty about this incident, but Dean Doherty did not
respond. Id. ¶ 165.
On May 6, 2014, a student slapped Matthew in the head and
knocked off his hat. Id. ¶ 164. He looked straight at Matthew
and said, “Take that shit off.” Id. Matthew reported this
incident to Dean Doherty, who said he would look into it. Id.
On May 27, 2014, someone wrote graffiti relating to Matthew
and the Camp Robindel incident in a CHS bathroom. Id. ¶ 168
(“Matt Thomas likes it in the ass.”). The incident was reported
to the CHS dean’s office, which reported the incident to the
police. Id. This was the twenty-fourth incident that Matthew and
his family reported to CPS during the 2013 to 2014 school year.
Id. ¶ 169.
On June 5, 2014, Mrs. Thomas learned that Kender had given
Matthew a failing grade on a lab report when Matthew’s partner
had received a perfect score for the same report. Id. ¶ 171.
16

Mrs. Thomas reported to Dean Doherty and Principal Caliri that
Matthew was being targeted and singled out by Kender. Id.
E.

Transfer to Another School

At the conclusion of the 2013 to 2014 school year, the
Thomas family decided to transfer Matthew to Central Catholic
High School because they believed that Matthew was not safe at
CHS and CHS was not meeting his educational needs. Id. ¶ 172.
Matthew had to repeat his sophomore year at Central Catholic.
Id. ¶ 188.
In about August 2014, K.M., G.C., and Z.D. pleaded guilty
in their criminal cases in juvenile court. Id. ¶ 190. K.M. and
G.C. pleaded guilty to a felony and a Class A misdemeanor
charge, while Z.D. pleaded guilty to two Class A misdemeanor
charges. Id. Three months later, in November 2014, K.M. was
honored for his sportsmanship and leadership at a Massachusetts
Interscholastic Athletic Association event at Gillette Stadium
in Foxboro, MA. Id. ¶¶ 202–03.
CHS students continued to harass Matthew when Central
Catholic played CHS in football and lacrosse. Id. ¶¶ 200, 209,
229. At the CHS–Central Catholic sophomore football game in
September 2014, Mrs. Thomas was taking photos on the sideline
when A.D. Moreau told her that she could not have her younger
children on the sideline and that she could not be taking

17

pictures there. Id. ¶ 199. However, other parents were allowed
to remain doing exactly what Mrs. Thomas was doing. Id. ¶ 201.
On August 7, 2015, the Thomas family sent the Town and CSC
a presentment letter, which was confidential because it
referenced juvenile proceedings. Id. ¶ 210. The media reported
on the presentment letter. Id. ¶ 212. In an August 21, 2015
local newspaper story, Salvatore Lupoli, a CHS assistant
football coach and CSC member, stated that he hoped “that people
will consider these young men innocent until proven guilty.” Id.
¶ 214. Sometime soon after, the local newspaper anonymously
received an unredacted copy of the presentment letter. Id.
¶ 216. Only the Thomas family, the Town, and the CSC had the
letter. Id. ¶ 216. In response to a September 11, 2015 newspaper
editorial, Lisa Vecchione, the sister of Moreau, published a
statement (although it is unclear where): “The allegations were
unfounded. Case closed.” Id. ¶ 217. Around that same time, the
families of K.M., G.C., and Z.D., through their spokesperson,
issued a press release denying the incidents at Camp Robindel.
Id. ¶ 218.
III. Procedural History
The plaintiffs originally filed their complaint on August
19, 2016. The operative complaint is the first amended
complaint, which was filed on August 22, 2016. The operative
complaint raises fourteen causes of action:
18

Count I: 42 U.S.C. § 1983 claim for violation of
substantive due process right to bodily integrity, First
Amendment rights to free speech and to petition the government,
the Equal Protection Clause, and “stigma plus” defamation,
against the municipal defendants.
Count II: Title IX claim under 20 U.S.C. § 1681, against
the municipal defendants.
Count III: Claim for IDEA reimbursement under 20 U.S.C.
§ 1400b, against the municipal defendants.
Count IV: 42 U.S.C. § 1983 claim for violation of
substantive due process right to bodily integrity, First
Amendment rights to free speech and to petition the government,
the Equal Protection Clause, and “stigma plus” defamation,
against the individual defendants.
Count V: 42 U.S.C. § 1983 claim for conspiracy to violate
federal constitutional rights, against the individual
defendants.
Count VI: Violation of the Massachusetts Declaration of
Rights, against the individual defendants.
Count VII: Violation of the Massachusetts Civil Rights Act,
Mass. Gen. Laws ch. 12, §§ 11H–11I, against the individual
defendants.

19

Count VIII (mislabeled as Count VII): Conspiracy to violate
the Massachusetts Civil Rights Act, against the individual
defendants.
Count IX (mislabeled as Count VIII): Defamation, against
the individual defendants.
Count X (mislabeled as Count IX): Intentional infliction of
emotional distress, against the individual defendants.
Count XI (mislabeled as Count X): Negligent infliction of
emotional distress, against the municipal defendants.
Count XII (mislabeled as Count X): Civil conspiracy, by the
individual defendants.
Count XIII (mislabeled as Count XI): Negligence, against
the municipal defendants.
Count XIV (mislabeled as Count XII): Loss of consortium,
against all defendants.
On January 10, 2017, the individual defendants and the
municipal defendants filed separate motions to dismiss. The
individual defendants move to dismiss all of the counts against
them: Counts IV, V, VI, VII, VIII (mislabeled VII), IX
(mislabeled VIII), X (mislabeled IX), XII (mislabeled X), and
XIV (mislabeled XII) of the amended complaint. The municipal
defendants moved to dismiss all of the counts against them:
Counts I, II, III, XI (mislabeled X), XIII (mislabeled XI), and
XIV (mislabeled XII) of the amended complaint.
20

LEGAL STANDARD
A Rule 12(b)(6) motion is used to dismiss complaints that
do not “state a claim upon which relief can be granted.” See
Fed. R. Civ. P. 12(b)(6). In evaluating a Rule 12(b)(6) motion,
this Court must accept the factual allegations in the
plaintiffs’ complaint as true, construe reasonable inferences in
their favor, and “determine whether the factual allegations in
the plaintiff[s’] complaint set forth a plausible claim upon
which relief may be granted.” Foley v. Wells Fargo Bank, N.A.,
772 F.3d 63, 71 (1st Cir. 2014).
DISCUSSION
I.

Federal Constitutional Claims (Count I, Against Municipal
Defendants, and Counts IV and V, Against Individual
Defendants)
A.

Substantive Due Process

The plaintiffs claim a deprivation of Matthew’s
“substantive due process right to bodily integrity” by both the
individual defendants and municipal defendants. To establish a
substantive due process claim, a plaintiff must show deprivation
of a protected interest in life, liberty or property that was
caused by government conduct. Rivera v. Rhode Island, 402 F.3d
27, 33–34 (1st Cir. 2005). The plaintiffs’ claim is that the
Camp Robindel broomstick incident was a deprivation of Matthew’s
protected interest in bodily integrity. See Albright v. Oliver,
510 U.S. 266, 271–72 (1994) (“The protections of substantive due
21

process have for the most part been accorded to matters relating
to marriage, family, procreation, and the right to bodily
integrity.”). But Matthew’s injury at Camp Robindel was
inflicted by other students, who are private persons, not
government actors. The claimed government involvement is
indirect: a failure to adequately protect Matthew from violence
by other students.
In general, “a State’s failure to protect an individual
against private violence simply does not constitute a violation
of the Due Process Clause.” DeShaney v. Winnebago Cty. Dep’t of
Soc. Servs., 489 U.S. 189, 197 (1989). This is because “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. The Clause is phrased as a
limitation on the State’s power to act, not as a guarantee of
certain minimal levels of safety and security.” Id. at 195.
DeShaney recognized a limited exception to this rule under
which a state has a constitutional duty to protect an individual
against private violence due to a “special relationship” between
the state and that individual. DeShaney, 489 U.S. at 197–200.
DeShaney described that special relationship as one in which
“the State takes a person into its custody and holds him there
against his will” and “by the affirmative exercise of [the
state’s] power so restrains an individual’s liberty that it
22

renders him unable to care for himself.” Id. at 199–200; see
also id. at 200 (“The affirmative duty to protect arises not
from the State’s knowledge of the individual’s predicament or
from its expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on his own
behalf.”). In other words, a state’s affirmative duty to protect
an individual arises out of the state’s exercise of its power to
place an individual under “incarceration, institutionalization,
or other similar restraint of personal liberty.” Id. at 200.
As a general matter, courts have declined to find a
“special relationship” between a public school and its students.
See Hasenfus v. LaJeunesse, 175 F.3d 68, 71–72 (1st Cir. 1999)
(citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655
(1995) (“[W]e do not, of course, suggest that public schools as
a general matter have such a degree of control over children as
to give rise to a constitutional ‘duty to protect.’”)); see also
Morrow v. Balaski, 719 F.3d 160, 168–69 (3d Cir. 2013)
(“Although the doctrine of in loco parentis certainly cloaks
public schools with some authority over school children, that
control, without more, is not analogous to the state’s authority
over an incarcerated prisoner or an individual who has been
involuntarily committed to a mental facility.”); Doe ex rel.
Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849,
857 (5th Cir. 2012) (en banc) (“[A] public school does not have
23

a DeShaney special relationship with its students requiring the
school to ensure the students’ safety from private actors.”);
Patel v. Kent Sch. Dist., 648 F.3d 965, 973 (9th Cir. 2011)
(“Compulsory school attendance and in loco parentis status do
not create ‘custody’ under the strict standard of DeShaney.”);
Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir.
1993) (“[S]tate-mandated school attendance does not entail so
restrictive a custodial relationship as to impose upon the State
the same duty to protect it owes to prison inmates, or to the
involuntarily institutionalized.”); Doe v. Claiborne Cty., Tenn.
By & Through Claiborne Cty. Bd. of Educ., 103 F.3d 495, 510 (6th
Cir. 1996) (“Although, clearly, a school system has an
unmistakable duty to create and maintain a safe environment for
its students as a matter of common law, its in loco parentis
status or a state’s compulsory attendance laws do not
sufficiently ‘restrain’ students to raise a school’s common law
obligation to the rank of a constitutional duty.”); J.O. v.
Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir.
1990) (“[T]he government, acting through local school
administrations, has not rendered its schoolchildren so helpless
that an affirmative constitutional duty to protect arises.
Whatever duty of protection does arise is best left to laws
outside the Constitution.”).

24

The First Circuit has stated that “[n]evertheless, we are
loath to conclude now and forever that inaction by a school
toward a pupil could never give rise to a due process
violation.” Hasenfus, 175 F.3d at 72. As such, the First Circuit
has recognized the possibility that “in narrow circumstances the
Supreme Court might find a due process obligation of the school
or school employees to render aid to a student in peril.” Id.;
see also Morgan v. Town of Lexington, 823 F.3d 737, 743 (1st
Cir. 2016). As possible examples of such “narrow circumstances,”
the First Circuit described the following scenarios: “If Jamie
had suffered a heart attack in the classroom, and the teacher
knew of her peril, could the teacher merely leave her there to
die without summoning help? If a six-year old child fell down an
elevator shaft, could the school principal ignore the matter?”
Hasenfus, 175 F.3d at 72. In short, the First Circuit has
suggested that a public school may have an affirmative duty to
protect a student in narrow circumstances where the school has
actual knowledge that the student is in clear, obvious, and
present peril.
Even allowing for that narrow exception, the Camp Robindel
incident does not qualify. The plaintiffs argue that the school
was negligent in leaving students unsupervised when it knew that
students had been bullied at previous camps, and it knew that
Matthew had previously been bullied by particular students who
25

were also at the camp. But the Camp Robindel incident was not a
situation in which school officials knew that students were
physically violating Matthew with a broomstick and yet failed to
intervene -- a situation that might fall into the narrow
exception that the First Circuit described in Hasenfus. The
school’s knowledge of the possibility that Matthew might be
subjected to more minor levels of bullying (such as urinating in
his cleats without his knowledge) falls short of what is
necessary to establish a DeShaney “special relationship”
affirmative constitutional duty on the school.
Some courts have also recognized the “state-created danger”
theory, which is a second exception to the general rule that a
state has no due process obligation to protect persons from
private violence. The state-created danger theory arises from
language in DeShaney that “suggested, but never expressly
recognized, the possibility that when the state creates the
danger to an individual, an affirmative duty to protect might
arise.” Rivera, 402 F.3d at 34–35 (citing DeShaney, 489 U.S. at
201). “While [the First C]ircuit has discussed the possible
existence of the state-created danger theory, [it] ha[s] never
found it applicable to any specific set of facts.” Irish v.
Maine, 849 F.3d 521, 526 (1st Cir. 2017); see also Coyne v.
Cronin, 386 F.3d 280, 287 (1st Cir. 2004) (“[T]he Due Process
Clause may be implicated where the government affirmatively acts
26

to increase the threat to an individual of third-party private
harm or prevents that individual from receiving assistance.”);
Hasenfus, 175 F.3d at 73 (“Where a state official acts so as to
create or even markedly increase a risk, due process constraints
may exist, even if inaction alone would raise no constitutional
concern.”).
There is a colorable argument that the school created a
danger by sponsoring a sleepaway football camp and putting
Matthew in an unsupervised bunkhouse with known bullies for
multiple nights. At the overnight environment at Camp Robindel,
Matthew was exposed to a markedly greater risk of violence than
if he were interacting with the same bullies in football
practice on the CHS campus.
But the Court ultimately need not decide that question
because “[e]ven if there exists a special relationship between
the state and the individual or the state plays a role in the
creation or enhancement of the danger, under a supposed state
created danger theory, there is a further and onerous
requirement that the plaintiff must meet in order to prove a
constitutional violation: the state actions must shock the
conscience of the court.” Rivera, 402 F.3d at 35. “In
determining whether the state has violated an individual’s
substantive due process rights, a federal court may elect first
to address whether the governmental action at issue is
27

sufficiently conscience shocking.” Id. at 36. Only if the answer
is “yes” does the Court need to address the question of whether
the school had a duty to protect Matthew from other students
because of either a special relationship or a state-created
danger.
“The shock-the-conscience test is an extremely demanding
one, and challenges analyzed under it rarely succeed.” GonzalezFuentes v. Molina, 607 F.3d 864, 885 (1st Cir. 2010).
Conscience-shocking behavior “means conduct that is truly
outrageous, uncivilized, and intolerable.” Hasenfus, 175 F.3d at
72; see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 847
(1998) (describing test as “whether the behavior of the
governmental officer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience”). “In
situations where actors have an opportunity to reflect and make
reasoned and rational decisions, deliberately indifferent
behavior may suffice to ‘shock the conscience.’” Rivera, 402
F.3d at 36. But see J.R. v. Gloria, 593 F.3d 73, 80 n.4 (1st
Cir. 2010) (“This circuit has never found on the facts of a case
that deliberately indifferent behavior was sufficiently
conscience-shocking to violate a plaintiff’s substantive due
process rights. Rivera merely suggested that under certain
circumstances, deliberately indifferent behavior could
conceivably qualify.”).
28

While the students’ Lord-of-the-Flies behavior shocks the
conscience, that is not the issue; the relevant inquiry is
whether there was any conscience-shocking behavior by the state
defendants that led to the bodily injury. The Court finds that
the answer is no. Although there is a plausible argument that
the defendants’ failure to supervise the bunkhouse was
negligent, the defendants’ conduct does not rise to the level of
deliberate indifference. The defendants knew that bullying took
place at previous football camps at Camp Robindel, but none of
the previous incidents of bullying were anywhere near as serious
as the broomstick rape. Similarly, while the defendants knew of
one previous occasion in which Matthew was bullied in football
practice -- urination in his cleats -- that incident was much
less serious. There was no reason for any of the defendants to
have believed that the students, if left unsupervised, would
have inflicted violence of this magnitude on Matthew. Eighth
Amendment cases applying the deliberate indifference standard
are instructive by analogy. See Cty. of Sacramento, 523 U.S. at
849–54 (suggesting that Eighth Amendment “deliberate
indifference” decisions may, in some cases, guide substantive
due process determinations of whether behavior shocks the
conscience). In the Eighth Amendment context, deliberate
indifference requires “subjective recklessness.” Farmer v.
Brennan, 511 U.S. 825, 839–40 (1994); see also Burrell v.
29

Hampshire Cty., 307 F.3d 1, 8 (1st Cir. 2002) (requiring
“actual, subjective appreciation of risk” for Eighth Amendment
deliberate indifference claim). There was no allegation that any
of the defendants had actual, subjective appreciation of the
risk that, left unsupervised, the bullying at Camp Robindel
would escalate to a rape by teammates. The plaintiffs fail to
state a substantive due process claim against either the
individual or municipal defendants.
B.

First Amendment Retaliation

The plaintiffs argue that the individual and municipal
defendants retaliated against them for exercising their First
Amendment free speech and petition rights. This claim, unlike
the substantive due process claim, pertains to events that took
place after the Camp Robindel incident.
“[A]s a general matter the First Amendment prohibits
government officials from subjecting an individual to
retaliatory actions . . . for speaking out.” Hartman v. Moore,
547 U.S. 250, 256 (2006); see also Perry v. Sindermann, 408 U.S.
593, 597 (1972) (noting that the government may not punish a
person or deprive him or her of a benefit on the basis of his or
her “constitutionally protected speech”). The rationale for the
First Amendment retaliation doctrine is that “constitutional
violations may arise from the deterrent, or ‘chilling,’ effect
of governmental efforts that fall short of a direct prohibition
30

against the exercise of First Amendment rights.” Bd. of Cty.
Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674
(1996).
“Under the First Amendment, retaliation claims proceed in
two stages. A plaintiff must first prove that (1) he or she
engaged in constitutionally protected conduct, (2) he or she was
subjected to an adverse action by the defendant, and (3) the
protected conduct was a substantial or motivating factor in the
adverse action. The defendant may then avoid a finding of
liability by showing that it would have reached the same
decision even in the absence of the protected conduct.” D.B. ex
rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012).
There is no question that Matthew and his family engaged in
constitutionally protected conduct by reporting the Camp
Robindel incident to the school and to the police and by
reporting subsequent harassment to the school.
Whether Matthew or his family suffered adverse action by
the defendants is disputed. In that employment context, the
First Circuit has stated that an adverse action is anything that
“would deter a reasonably hardy individual from exercising his
constitutional rights.” See Barton v. Clancy, 632 F.3d 9, 29
(1st Cir. 2011). “A campaign of informal harassment, for
example, would support a First Amendment retaliation claim if
the alleged harassment would have such a chilling effect. Even
31

relatively minor events can give rise to § 1983 liability, so
long as the harassment is not so trivial that it would not deter
an ordinary employee in the exercise of his or her First
Amendment rights.” Id. The First Circuit subsequently applied
that standard in an educational environment case more analogous
to this one, in which a disabled child and his parents claimed
that they were unlawfully subjected to retaliatory adverse
action by the child’s public school system for championing their
child’s rights to a Free Appropriate Public Education (“FAPE”)
under the IDEA. D.B., 675 F.3d at 43.
Alleged statements and actions by Matthew’s teachers were
sufficiently derogatory to constitute adverse action against
Matthew for speaking out. The allegations pertain to three
teachers: Siragusa, Kender, and Cole. Siragusa allegedly had his
Spanish class translate sentences that made fun of Matthew for
reporting the Camp Robindel incident. Kender allegedly yelled at
Matthew, in front of other students, for being an “instigator,”
and then gave him an unjustifiably low grade on an assignment.
Cole allegedly gave mean stares at Matthew at various times in
school and, on one occasion, approached Matthew’s friend while
he was fishing outside of school and said, “It’s better to have
a pole in your hands than up your ass.” The teachers’ actions
are sufficiently adverse and it is plausible that they were
causally linked to Matthew’s First Amendment activity, thereby
32

stating a claim for First Amendment retaliation.1 Taken together,
when all reasonable inferences are drawn in the plaintiffs’
favor, the plaintiffs have alleged a plausible claim of
retaliatory conduct by the teachers at least at this early stage
of the litigation.
The plaintiffs also allege that certain school
administrators retaliated against Matthew by their deliberate
indifference to the sexual harassment, bullying and threats by
other students and by teachers. The complaint alleges a pattern
of bullying, taunting, and sexual harassment by other students
after the incident. The complaint alleges that Dean Doherty was
repeatedly notified of other students’ harassment of Matthew and
failed to take any significant action, despite promising that he
would respond. The complaint alleges the same for Superintendent
Tiano, Principal Caliri, and A.D. Moreau, although the complaint
alleges fewer instances in which the Thomas family reported
harassment to them. The complaint plausibly alleges that the
reason the school administrators did not take action in response
to the widespread student harassment of Matthew was that Matthew

1

The teachers’ alleged actions were taken under the color of
state law, satisfying the state action requirement and the color
of law requirement for a § 1983 claim. Siragusa’s and Kender’s
alleged statements by teachers were made in their capacities as
public school teachers while at school. See Martinez v. Colon,
54 F.3d 980, 986 (1st Cir. 1995). While it is not certain
whether Cole’s out-of-school “pole in your hands” statement was
state action, that statement at a minimum reinforces Matthew’s
claim that Cole would give him mean stares in school.
33

reported misconduct by star athletes at Camp Robindel. Cf.
Morgan, 823 F.3d at 743 (suggesting that school officials’
inaction to protect against bullying could conceivably give rise
to due process liability). The Court concludes that a school’s
failure to take action to stop bullying and sexual harassment in
response to a student’s complaints of rape is sufficiently
adverse to state a retaliation claim. Accordingly, Matthew has
stated a claim for First Amendment retaliation against Siragusa,
Kender, and Cole, as well as against Superintendent Tiano,
Principal Caliri, Dean Doherty, and A.D. Moreau.2
As for the other plaintiffs, the only alleged retaliatory
action against either of Matthew’s parents is when A.D. Moreau
made Mrs. Thomas leave the sideline in the CHS–Central Catholic
sophomore football game with no justification. However, a
reasonably hardy parent could withstand that ejection. That
incident does not allow a claim by Mrs. Thomas against Moreau to
survive the motion to dismiss. No other retaliation claims by
Mr. or Mrs. Thomas have been adequately pleaded. No adverse
actions by Coach Rich are adequately pleaded and the First
Amendment claims against him are dismissed.

2

The Court addresses the individual defendants’ qualified
immunity arguments in a later section.
The Court also addresses in a later section the question of
municipal liability for First Amendment retaliation.
34

C.

“Stigma Plus” Due Process Claim (Counts I and IV)

The plaintiffs raise a procedural due process claim against
the individual and municipal defendants based on the theory of
“stigma plus” defamation. Reputational harm inflicted by a state
actor does not, by itself, constitute a deprivation of a liberty
or property interest that invokes due process protection. URI
Student Senate v. Town Of Narragansett, 631 F.3d 1, 9 (1st Cir.
2011) (citing Paul v. Davis, 424 U.S. 693, 701–02 (1976)).
“Thus, when a person alleges that she has suffered
stigmatization at the hands of a government actor, she must show
an adverse effect on some interest ‘more tangible’ than
reputational harm. To use the popular catch phrase, the
complaining party must satisfy a ‘stigma plus’ standard.” Id.
Courts have “discern[ed] a deprivation of a constitutionally
protected liberty interest when, in addition to mere
reputational injury, words spoken by a government actor
adversely impact a right or status previously enjoyed under
state law.” Pendleton v. City of Haverhill, 156 F.3d 57, 63 (1st
Cir. 1998); see also Paul, 424 U.S. at 708 (suggesting that
person can claim procedural protections when reputational harm
is accompanied by deprivation of “a right previously held under
state law”). The plaintiffs argue they state a claim for a
“stigma plus” due process violation because of Matthew’s

35

deprivation of a FAPE, an educational right that is guaranteed
under the IDEA.
The Court does not reach the question of whether the
“stigma plus” factor is adequately pleaded because the
plaintiffs fail to make the predicate showing that any of the
defendants caused them any reputational harm. For reasons stated
infra Section III.C (dismissing defamation claims), there are no
defamatory statements traceable to any of the named defendants.
The plaintiffs fail to state a stigma-plus due process claim.
D.

Equal Protection Claim

The plaintiffs’ equal protection claim relies on two
different theories. First, the plaintiffs argue that because
Matthew is male, he was treated differently from how a female
victim in his situation would have been treated. Second, the
plaintiffs make a “class of one” claim that the “government
singled him out for differential treatment for reasons unique to
him, rather than because of his membership in any group.” Snyder
v. Gaudet, 756 F.3d 30, 34 (1st Cir. 2014).
To prevail on either theory, the plaintiffs must show
differential treatment relative to a similarly situated
comparator. See id. at 34 (explaining that to state a “class of
one” claim, a plaintiff “must show that he ‘has been
intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
36

treatment’” (quoting Vill. of Willowbrook v. Olech, 528 U.S.
562, 564 (2000))); Freeman v. Town of Hudson, 714 F.3d 29, 38
(1st Cir. 2013) (“An equal protection claim requires proof that
(1) the person, compared with others similarly situated, was
selectively treated; and (2) that such selective treatment was
based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person.”).
The plaintiffs do not show any similarly situated
comparator. The plaintiffs’ equal protection claim is based
entirely on how school officials might have treated a
hypothetical, similarly situated female rape victim. Such
conjecture does not suffice to state an equal protection claim.
The plaintiffs also suggest that the Court could compare how the
defendants treated Matthew and how they treated his assailants.
Matthew is not similarly situated to the other students involved
in the Camp Robindel rape. The plaintiffs fail to state an equal
protection claim against either the individual or municipal
defendants.
E.

Supervisory Liability of Individual Defendants

The plaintiffs appear to argue that some of the individual
defendants are subject to supervisory liability under section
1983 because they were deliberately indifferent to their
subordinates’ actions. Docket No. 40 at 6–9.
37

Supervisory liability under section 1983 has two elements.
First, “the plaintiff must show that one of the supervisor’s
subordinates abridged the plaintiff’s constitutional rights.”
Guadalupe-Baez v. Pesquera, 819 F.3d 509, 514 (1st Cir. 2016).
Second, the plaintiff must show that “the [supervisor]’s action
or inaction was affirmative[ly] link[ed] to that behavior in the
sense that it could be characterized as supervisory
encouragement, condonation, or acquiescence or gross negligence
amounting to deliberate indifference.” Id. at 515 (alterations
in original) (quoting Pineda v. Toomey, 533 F.3d 50, 54 (1st
Cir. 2008)). “[A] supervisor may not be held liable under
section 1983 on the tort theory of respondeat superior, nor can
a supervisor’s section 1983 liability rest solely on his
position of authority. [T]he supervisor’s liability must be
premised on his own acts or omissions.” Id.
Deliberate indifference requires a showing that the
supervisor “had knowledge of facts” from which he or she could
“draw the inference that a substantial risk of serious harm
exists.” Id. “Deliberate indifference alone does not equate with
supervisory liability” because “[c]ausation remains an essential
element.” Id. Causation requires “proof that the supervisor’s
conduct led inexorably to the constitutional violation.” Id. A
plaintiff may prove causation by showing inaction in the face of

38

a “known history of widespread abuse sufficient to alert a
supervisor to ongoing violations.” Id.
The parties spar over whether the individual defendants
were deliberately indifferent to students’ behavior toward
Matthew. Both parties miss the antecedent issue, which is that
supervisory liability cannot be predicated on actions by
students. First, it is plain that a student does not have a
supervisor-subordinate relationship with a teacher or school
administrator. Second, a student’s actions cannot create the
underlying constitutional infringement to support supervisory
liability because of the lack of state action.
Supervisory liability may nonetheless exist as to
individual defendants who encouraged or were deliberately
indifferent to the actions of school district employees who
infringed the plaintiffs’ constitutional rights. The complaint
alleges that Superintendent Tiano supervised A.D. Moreau and
Principal Caliri. Compl. ¶ 7. The complaint also alleges that
Principal Caliri directly supervised Dean Doherty and all
teachers at CHS. Id. ¶ 8. Superintendent Tiano and Principal
Caliri are the only two individual defendants alleged to have
had supervisory roles. Id. ¶ 7–14. But for any supervisory
liability to attach to either defendant, the complaint must
allege acts or omissions by that supervisor rather than relying
on a general theory of vicarious liability.
39

Plaintiffs have already adequately pleaded primary
liability for First Amendment retaliation against Superintendent
Tiano and Principal Caliri with respect to deliberate
indifference to the sexual harassment of Matthew by fellow
students. The question is whether the complaint also adequately
alleges that Superintendent Tiano and Principal Caliri have
supervisory liability for First Amendment retaliation. The
plaintiffs argue that Superintendent Tiano and Principal Caliri
knew that multiple teachers were making retaliatory comments
about Matthew, but that Superintendent Tiano and Principal
Caliri themselves retaliated against Matthew by being
deliberately indifferent to the constitutional violations in a
way that could be considered supervisory encouragement or
condonation. But the complaint suggests that the administration
did respond to reports of teachers’ retaliatory comments. E.g.,
Compl. ¶ 105, 106, 112. While the plaintiffs argue that the
administrators’ response was inadequate, the Court’s role is not
to second-guess supervisory approaches. Rather, the question is
whether the plaintiffs plead such deliberate indifference on the
part of the supervisors that the supervisors themselves could be
said to have engaged in constitutional misconduct. The
plaintiffs fail to state a supervisory liability claim against
Superintendent Tiano and Principal Caliri.

40

F.

Qualified Immunity

The individual defendants have asserted that they are
protected by the doctrine of qualified immunity. “[T]he
qualified immunity inquiry is a two-part test. A court must
decide: (1) whether the facts alleged or shown by the plaintiff
make out a violation of a constitutional right; and (2) if so,
whether the right was ‘clearly established’ at the time of the
defendant’s alleged violation.” Maldonado v. Fontanes, 568 F.3d
263, 268–69 (1st Cir. 2009) (quoting Pearson v. Callahan, 555
U.S. 223, 232 (2009)). For purposes of the second step of that
analysis, whether the right in question was “clearly
established” depends on “(a) whether the legal contours of the
right in question were sufficiently clear that a reasonable
[government official] would have understood that what he was
doing violated the right, and (b) whether in the particular
factual context of the case, a reasonable [government official]
would have understood that his conduct violated the right.”
Mlodzinski v. Lewis, 648 F.3d 24, 33 (1st Cir. 2011).
In recent years, the Supreme Court has published a number
of per curiam reversals of denials of qualified immunity,
emphasizing that “clearly established law” should not be defined
“at a high level of generality.” White v. Pauly, 137 S. Ct. 548,
552 (2017) (per curiam) (quoting Ashcroft v. al–Kidd, 563 U.S.
731, 742 (2011)); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
41

(per curiam). While it does not require “a case directly on
point” for law to be clearly established, “existing precedent
must have placed the statutory or constitutional question beyond
debate.” Mullenix, 136 S. Ct. at 308. The question is “whether
the violative nature of particular conduct is clearly
established,” id. (quoting al-Kidd, 563 U.S. at 742), and it
must be answered “in light of the specific context of the case,
not as a broad general proposition, id. (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
Two constitutional violations adequately pleaded against
the individual defendants are: (1) violation of the First
Amendment by public school teachers by singling out and mocking
a student in front of a class, giving him an unjustifiably low
grade, or giving him mean looks on multiple occasions in
retaliation for that student having previously made a report of
student-on-student sexual assault, and (2) violation of the
First Amendment by public school administrators by ignoring a
student’s reports of bullying by other students and teachers, in
retaliation for that student having previously made a report of
student-on-student sexual assault. With respect to the first
theory, the case law is clear that the teachers’ harassment
against a student in retaliation for reporting a sexual assault
is impermissible retaliation in violation of the student’s First
Amendment rights. See, e.g., Seamons v. Snow, 84 F.3d 1226,
42

1238-39 (10th Cir. 1996) (holding that student’s reporting of
sexual hazing was entitled to First Amendment protection, and
school officials were not entitled to qualified immunity when
they punished him by throwing him off the football team).
The second theory is harder because the parties have cited
no case law directly on point that supports the theory that
deliberate indifference by school officials to sexual harassment
and bullying by fellow students can be a retaliatory adverse
action under the First Amendment. In other words, it is not
clear under the existing case law whether inaction can be an
adverse action rising to the level of retaliation in violation
of the First Amendment.
Accordingly, the Court finds that qualified immunity
applies to the claim that Dean Doherty, Superintendent Tiano,
Principal Caliri, and A.D. Moreau engaged in First Amendment
retaliation against Matthew by taking no action in response to
his complaints about harassment by other students. The Court
denies qualified immunity for the claim that Siragusa, Kender,
and Cole engaged in First Amendment retaliation against Matthew
by themselves harassing Matthew following the Camp Robindel
incident.
G.

Monell Liability

Under Monell v. Department of Social Services, a
municipality may not be held liable under a theory of respondeat
43

superior for an employee’s constitutional violation but it may
be held liable when “execution of [the municipality’s] policy or
custom . . . inflict[ed] the injury.” 436 U.S. 658, 694 (1978).
In other words, there must be “a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385
(1989). “The ‘official policy’ requirement was intended to
distinguish acts of the municipality from acts of employees of
the municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is
actually responsible.” Pembaur v. City of Cincinnati, 475 U.S.
469, 479 (1986). “Official municipal policy includes the
decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick v.
Thompson, 563 U.S. 51, 61 (2011).
Under Massachusetts law, the school committee in each city
or town has policymaking authority. Armstrong v. Lamy, 938 F.
Supp. 1018, 1035 (D. Mass. 1996) (citing Mass. Gen. Laws ch. 71,
§ 37 (“The school committee in each city and town . . . shall
establish educational goals and policies for the schools in the
district . . . .”)). A superintendent is not generally a
policymaker for the school committee. See Mass. Gen. Laws. ch.
71, § 59 (“A superintendent . . . shall manage the system in a
44

fashion consistent with . . . the policy determinations of that
school committee . . . .”); McLaughlin v. City of Lowell, No.
CIV.A. 94-5069, 1998 WL 224929, at *13 (Mass. Super. Ct. Apr. 3,
1998) (Gants, J.) (“In short, the school committee makes policy;
the school superintendent and principals implement those
policies.”). The question, then, is whether the CSC or the Town
engaged in any policymaking that violated the plaintiff’s
constitutional rights.
The complaint does not point to any affirmative policy
decisions by the CSC or the Town that caused the injury. But
“[a] § 1983 plaintiff . . . may be able to recover from a
municipality without adducing evidence of an affirmative
decision by policymakers if able to prove that the challenged
action was pursuant to a state ‘custom or usage.’” Pembaur v.
City of Cincinnati, 475 U.S. 469, 484 n.10 (1986). “There are
two requirements to prove a claim grounded on custom. First, the
custom or practice must be attributable to the municipality.
That is, it must be ‘so well settled and widespread that the
policymaking officials of the municipality can be said to have
either actual or constructive knowledge of it yet did nothing to
end the practice.’ Second, the custom must have been the cause
of and ‘the moving force behind’ the constitutional violation.”
Whitfield v. Melendez-Rivera, 431 F.3d 1, 13 (1st Cir. 2005)

45

(quoting Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.
1989)).
The plaintiffs claim that Chelmsford schools had a custom
of encouraging a win-at-all-costs sports culture that did not
apply the same rules to star athletes, and that the municipality
was aware of and perhaps even encouraged the culture. As a
matter of formal policy, the CSC did implement a Bullying
Intervention Plan in 2010 and entered into a Memorandum of
Understanding with the Chelmsford Police to work together to
respond to bullying. The plaintiffs allege that in practice,
though, CSC had a practice of not applying its bullying policies
and looking the other way from sexual misconduct and sexual
harassment by star athletes. The plaintiffs allege that this
culture was the moving force behind the First Amendment
retaliation against Matthew by his teachers. The plaintiffs
adequately plead municipal liability for First Amendment
retaliation based on the role that municipal policy or custom
allegedly played in the constitutional violation.
H.

Conspiracy to Violate Federal Constitutional Rights,
Against Individual Defendants

A § 1983 conspiracy “as commonly defined is ‘a combination
of two or more persons acting in concert to commit an unlawful
act, or to commit a lawful act by unlawful means, the principal
element of which is an agreement between the parties to inflict

46

a wrong against or injury upon another, and an overt act that
results in damages.’” Estate of Bennett v. Wainwright, 548 F.3d
155, 178 (1st Cir. 2008) (quoting Earle v. Benoit, 850 F.2d 839,
844 (1st Cir. 1988)). The plaintiffs cannot defeat a motion to
dismiss based on conclusory allegations of conspiracy that are
not supported by references to material facts. The plaintiffs
plead no facts to support the existence of an agreement between
parties to violate their federal constitutional rights, so they
fail to cross the plausibility threshold.
II.

Federal Statutory Claims
A.

Title IX (Count II, Against Municipal Defendants)

Title IX of the Education Amendments of 1972 provides that
“[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a). Title IX provides an implied private right of action
against the educational institution when sexual harassment is
“sufficiently severe and pervasive to compromise or interfere
with educational opportunities normally available to students”
and “a school official authorized to take corrective action had
actual knowledge of the harassment, yet exhibited deliberate
indifference to it.” Frazier v. Fairhaven Sch. Comm., 276 F.3d
52, 65–66 (1st Cir. 2002).
47

“Discrimination on the basis of sex is the sine qua non of
a Title IX sexual harassment case.” Id. at 66. “[A] hostile
environment claim based upon same-sex harassment is cognizable
under Title IX,” but the plaintiff must show that the harassment
was “on the basis of sex.” Id.; see also id. (“[T]he plaintiff
must always prove that the conduct at issue was not merely
tinged with offensive sexual connotations, but in fact
constituted discrimination because of sex.” (quoting Higgins v.
New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir.
1999))).
Several cases in this circuit have addressed similar
situations. In Morgan, a student claimed sexual harassment based
on the fact that, among a number of bullying incidents that he
suffered, there was one incident in which he had his pants
pulled down in front of a girl. 823 F.3d at 745. He was also
kicked, punched and verbally assaulted. Id. at 740. The First
Circuit reasoned that “the pulling down of the pants by and
large seems clearly to be an adjunct to the bullying on the
basis of other considerations and by itself is not portrayed in
the complaint as sufficiently ‘severe’ and/or ‘pervasive’ to
supply a sexual harassment claim under Title IX.” Id. at 745.
Significantly, Morgan only involved one incident (pulling down
pants) that could be deemed sex-based.

48

In Snelling v. Fall Mountain Reg’l Sch. Dist., No. CIV. 99448-JD, 2001 WL 276975 (D.N.H. March 21, 2001), the District
Court denied the defendants’ motion for summary judgment based
on evidence of sex-based harassment where the student was
subjected to repeated homophobic name-calling and taunting
because of the student’s failure to meet sex-based expectations
of masculinity. Id. at *4.
In Hankey v. Town of Concord-Carlisle, 136 F. Supp. 3d 52
(D. Mass. 2015), the district court allowed summary judgment for
defendant school officials in a case involving extensive genderneutral bullying and threats but only one sexually degrading
epithet (“cunt”). However, the Court recognized the possibility
that Title IX liability would attach where “repeated and
pervasive sexual or gender-specific comments, epithets, and/or
conduct . . . ‘so poisoned the entire body of conduct towards
Plaintiff’ that a jury could reasonably view other facially
neutral conduct directed at the plaintiff as sexual or genderbased as well.” Id. at 68 (quoting O’Shea v. Yellow Tech.
Servs., Inc., 185 F.3d 1093, 1102 (10th Cir. 1999)).
Here there is evidence of extensive student-on-student
sexual harassment for a whole school year following the Camp
Robindel incident, including sexually degrading epithets:
“Broomstick,” “What’s up with high school boys sticking stuff up
each other’s asses these days?,” and whether Matthew “liked it
49

and if he wanted it again.”

While much of the bullying was

gender-neutral, plaintiffs presented evidence of pervasive
sexual taunting sufficient to constitute a hostile educational
environment.
The municipal defendants argue that there is no evidence
that the harassment was “based on sex,” relying on Seamons. In
Seamons, the plaintiff, a victim of a locker room sexual
assault, objected to comments made by school officials that
“boys will be boys” and that “he should take it like a man” in
order to promote team loyalty and toughness. 84 F.3d at 1233.
The Tenth Circuit ruled: “The fact that the coach, and perhaps
others, described these qualities as they pertain to his
situation in terms of the masculine gender does not convert this
into sexual harassment.” Id. But here, the alleged sexual
taunting came in different forms from different students over an
extended period of time, making the sexually charged hostile
environment more repeated and pervasive. The plaintiffs
adequately state a Title IX claim, at least at this early stage
of the litigation.
B.

IDEA Reimbursement (Count III, Against Municipal
Defendants)

IDEA requires state or local agencies receiving federal
IDEA funds to “establish and maintain procedures . . . to ensure
that children with disabilities and their parents are guaranteed

50

procedural safeguards with respect to the provision of free
appropriate public education by such agencies.” 20 U.S.C.
§ 1415(a); see also Rose v. Yeaw, 214 F.3d 206, 209 (1st Cir.
2000). Among the required procedures is “[a]n opportunity for
any party to present a complaint . . . with respect to any
matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a free
appropriate public education to such child.” Id. § 1415(b)(6). A
parent who files such a complaint has the right to an “impartial
due process hearing” conducted by either the state or local
educational agency. Id. § 1415(f)(1). A parent has the right to
file a civil action in state or federal court only if he or she
remains aggrieved after the due process hearing. Id.
§ 1415(i)(2)(A).
A plaintiff does not have to exhaust administrative
remedies if he or she can show that “that the administrative
remedies afforded by the process are inadequate given the relief
sought.” Frazier, 276 F.3d at 59; see also Rose, 214 F.3d at
210–11 (“A plaintiff does not have to exhaust administrative
remedies if she can show that the agency’s adoption of an
unlawful general policy would make resort to the agency futile,
or that the administrative remedies afforded by the process are
inadequate given the relief sought. Similarly, exhaustion is not
required where the agency has prevented the litigant from
51

pursuing the administrative process.”). The plaintiff seeking to
invoke an exemption to exhaustion has the burden of showing that
exemption applies. Frazier, 276 F.3d at 59.
The plaintiffs did not pursue any administrative remedies.
On one occasion, the plaintiffs raised concerns about Kender’s
compliance with Matthew’s IEP to Dean Doherty, and Dean Doherty
suggested a peer tutor for Matthew. Otherwise, there is no
allegation that the plaintiffs discussed any educational
concerns with CHS or availed themselves of any IDEA procedures
before enrolling him in private school. The plaintiffs argue
that their failure to exhaust should be excused because “it
would have been a futile matter where the Defendants didn’t tell
them they had IDEA rights.” Docket No. 38 at 32. The plaintiffs
also argue that they were more concerned about Matthew’s safety
than his IEP and that the application deadline for his private
school was looming.
None of those excuses is convincing. The plaintiffs make no
developed argument as to why Massachusetts’s implementation of
the IDEA requirements, Mass. Gen. Laws ch. 71B, was inadequate
to remedy any FAPE deprivation. They do not meet their burden by
claiming in a conclusory manner than IDEA procedures would have
been futile. There are sound reasons for enforcing the IDEA
exhaustion requirement. “The IDEA’s administrative machinery
places those with specialized knowledge -- education
52

professionals -- at the center of the decisionmaking process,
entrusting to them the initial evaluation of whether a disabled
student is receiving a free, appropriate public education. These
administrative procedures also ensure that educational agencies
will have an opportunity to correct shortcomings in a disabled
student’s individualized education program.” Frazier, 276 F.3d
at 60–61. The plaintiffs fail to state an IDEA claim.
III. State Law Claims
A.

Massachusetts Declaration of Rights (Count VI, Against
Individual Defendants)

The plaintiffs claim that the individual defendants’
conduct violated their state constitutional rights. Courts have
held that in most circumstances, plaintiffs may not bring direct
claims under the state constitution but must instead bring a
claim under the Massachusetts Civil Rights Act, Mass. Gen. Laws
Ann. ch. 12, § 11I. See Martino v. Hogan, 643 N.E.2d 53, 59–60
(Mass. App. Ct. 1994); see also Grubba v. Bay State Abrasives,
Div. of Dresser Indus., Inc., 803 F.2d 746, 748 (1st Cir. 1986).
The Massachusetts Civil Rights Act provides an adequate
procedural vehicle, and it is raised as a cause of action in
Counts VII and VIII. The plaintiffs fail to state a cause of
action under the Massachusetts Declaration of Rights.3

3

The plaintiffs ask that Count VI be dismissed without
prejudice, since they claim that the law in this area is novel
53

B.

Massachusetts Civil Rights Act (Count VII and VIII,
Against Individual Defendants)

“To establish a claim under the [Massachusetts Civil Rights
Act (‘MCRA’)], the plaintiffs must prove that (1) their exercise
or enjoyment of rights secured by the Constitution or laws of
either the United States or of the Commonwealth, (2) have been
interfered with, or attempted to be interfered with, and (3)
that the interference or attempted interference was by ‘threats,
intimidation or coercion.’” Swanset Dev. Corp. v. City of
Taunton, 668 N.E.2d 333, 337 (Mass. 1996); see also Mass. Gen.
Laws ch. 12, § 11I. “[T]he MCRA is narrower than § 1983 in that
it limits its remedy to conduct that interferes with a secured
right ‘by threats, intimidation or coercion.’ . . . The
Massachusetts legislature intended that even a direct
deprivation of a plaintiff’s rights ‘would not be actionable
under the act unless it were accomplished by means of one of
these three constraining elements.’” Nolan v. CN8, 656 F.3d 71,
76–77 (1st Cir. 2011) (quoting Buster v. George W. Moore, Inc.,
783 N.E.2d 399, 409 (Mass. 2003)).
“In the context of the [MCRA], a ‘threat’ consists of the
intentional exertion of pressure to make another fearful or
apprehensive of injury or harm. ‘Intimidation’ involves putting
in fear for the purpose of compelling or deterring conduct.

and still developing, but they provide no supporting authority
for that statement. The dismissal of Count VI is with prejudice.
54

‘Coercion’ is the application to another of such force, either
physical or moral, as to constrain him to do against his will
something he would not otherwise have done.” Haufler v. Zotos,
845 N.E.2d 322, 335 (Mass. 2006). The standard is objective:
“whether a reasonable person in [the plaintiff’s] circumstance
would feel threatened, intimidated or coerced by [the
defendant’s] conduct.” Meuser v. Fed. Express Corp., 564 F.3d
507, 520 (1st Cir. 2009) (citing Commonwealth v. DeVincent, 266
N.E.2d 314, 316 (Mass. 1971)).
In support of the MCRA claim, the plaintiffs raise the same
federal constitutional rights alleged to have been violated in
the § 1983 claims. In addition, the plaintiffs, citing McDuffy
v. Sec’y of Exec. Office of Educ., 615 N.E.2d 516, 555 (Mass.
1993), claim that Matthew was deprived of a state constitutional
right to a public education.
The plaintiffs adequately state a claim for deprivation of
constitutional rights by moral coercion by Siragusa and Kender.
The question is whether the alleged actions by those defendants
rose to the level that would have intimidated a reasonable
fifteen-year-old student in Matthew’s position to refrain from
doing something against his will. The strongest allegation is
that Matthew’s teachers ridiculed him in front of other students
for having “snitched” to the police. While there were no threats
of physical injury or harm, a fifteen-year-old could reasonably
55

have been intimidated from continuing to speak up about future
incidents of harassment. There is also a plausible allegation
that Matthew left CHS and was deprived of a state right to
education because of moral coercion by the Siragusa and Kender.
No plausible MCRA claim is stated against any of the other
individual defendants.
The plaintiffs fail to state a claim for conspiracy to
violate the MCRA. “To prove their claims for civil conspiracy,
the plaintiffs must show an underlying tortious act in which two
or more persons acted in concert and in furtherance of a common
design or agreement.” Bartle v. Berry, 953 N.E.2d 243, 253
(Mass. App. Ct. 2011). The complaint does not adequately plead
that the individual defendants acted in concert to violate
Matthew’s federal or state constitutional rights by threat,
intimidation or coercion. The plaintiffs fail to state an MCRA
conspiracy claim.
C.

Defamation (Count IX, Against Individual Defendants)

“To prevail on a claim of defamation, a plaintiff must
establish that the defendant was at fault for the publication of
a false statement regarding the plaintiff, capable of damaging
the plaintiff’s reputation in the community, which either caused
economic loss or is actionable without proof of economic loss.”
White v. Blue Cross & Blue Shield of Mass., Inc., 809 N.E.2d
1034, 1036 (Mass. 2004). “The element of publication is
56

satisfied where the defamatory communication is transmitted to
even one person other than the plaintiff.” Phelan v. May Dep’t
Stores Co., 819 N.E.2d 550, 554 (Mass. 2004). To be defamatory,
the statement must be “of and concerning” the plaintiffs. Eyal
v. Helen Broadcasting Corp., 583 N.E.2d 228, 230 (Mass. 1991).
“In Massachusetts, the test whether [an alleged defamatory
statement] is of and concerning the plaintiff is met by proving
either (1) that the defendant intended the words to refer to the
plaintiff and that they were so understood or (2) that persons
could reasonably interpret the defendant’s words to refer to the
plaintiff and that the defendant was negligent in publishing
them in such a way that they could be so understood.” HipSaver,
Inc. v. Kiel, 984 N.E.2d 755, 766 (Mass. 2013) (quoting ELM Med.
Lab., Inc. v. RKO Gen., Inc., 532 N.E.2d 675 (Mass. 1989)). An
expression of pure opinion may not for the basis of a defamation
claim. Id. at 765 n.11.
The plaintiffs raise the following statements as being
defamatory: “the matter was not serious ‘a juvenile nature,’
denying a rape occurred, claiming Matt lied and that he made
everything up, and denying the results of the [New Hampshire]
proceedings knowing in fact how the matters were resolved.”
Docket No. 40 at 19.
None of those statements are actionable as defamation
against the named defendants. Statements that the Camp Robindel
57

incident was of “a juvenile nature” were made to media sources
by unnamed sources, and the complaint alleges no basis other
than speculation to trace the words to any of the individual
defendants. As to statements denying the Camp Robindel incident
and claiming that Matthew was lying, the complaint does not
actually allege an instance when a defendant made such a
statement. Students at the school allegedly said that Matthew
was a liar, and the families of K.M., G.C., and Z.D. issued a
press release denying the Camp Robindel incident. But none of
them is a defendant. Denial of the results of the New Hampshire
proceedings were alleged to have been made by Lisa Vecchione,
whose relationship to the case is unclear from the complaint
other than that she is the sister of defendant Moreau, and
Salvatore Lupoli, a member of the CSC who is not named as an
individual defendant. See Howard v. Town of Burlington, 506
N.E.2d 102, 105 (Mass. 1987) (“The general respondeat superior
test involving intentional torts considers whether the act was
within the course of employment, and in furtherance of the
employer’s work.”). But the complaint makes no allegations about
what capacity Lupoli was speaking in. The defamation claim is
dismissed as to all defendants.

58

D.

Intentional Infliction of Emotional Distress (Count X,
Against Individual Defendants)

To make out an intentional infliction of emotional distress
claim, a plaintiff must show: “(1) that the defendant intended
to inflict emotional distress or that he knew or should have
known that emotional distress was the likely result of the
conduct, (2) that the conduct was extreme and outrageous, was
beyond all possible bounds of decency and was utterly
intolerable in a civilized community, (3) that the actions of
the defendant were the cause of the plaintiff’s distress, and
(4) that the emotional distress sustained by the plaintiff was
severe and of a nature that no reasonable person could be
expected to endure.’” Conway v. Smerling, 635 N.E.2d 268, 273
(Mass. 1994) (quoting Agis v. Howard Johnson Co., 355 N.E.2d 315
(Mass. 1976)). Outrageous means “a high order of reckless
ruthlessness or deliberate malevolence that . . . is simply
intolerable.” Id. “Thus, liability cannot be predicated upon
mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities, nor even is it enough that
the defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress,
or even that his conduct has been characterized by malice, or a
degree of aggravation which would entitle the plaintiff to
punitive damages for another tort.” Foley v. Polaroid Corp., 508

59

N.E.2d 72, 82 (Mass. 1987). “There is an issue for the jury if
reasonable people could differ on whether the conduct is
‘extreme and outrageous.’” Boyle v. Wenk, 392 N.E.2d 1053, 1056–
57 (Mass. 1979).
As with other claims in this case, it is necessary to parse
out the allegations against each individual defendant. The
plaintiffs make plausible claims against Siragusa and Kender,
the teachers who allegedly ridiculed a boy in front of his
classmates for reporting a sexual assault to the police and
school officials. While Cole also allegedly acted
inappropriately as a teacher by making derogatory comments about
the incident, his conduct was not as extreme or outrageous
because his “pole” comment was made outside the presence of
Matthew. Nor do allegations about Cole giving mean looks to
Matthew rise to the level of extreme and outrageous. No extreme
and outrageous conduct is adequately pleaded as to any of the
other individual defendants.
E.

Negligence (Count XIII, Against Municipal Defendants),
Negligent Infliction of Emotional Distress (Count XI,
Against Municipal Defendants)

For both the negligence claim (Count XIII) and the
negligent infliction of emotional distress claim (Count XI), the
threshold question is whether Massachusetts law allows the
municipal defendants to be susceptible to the tort claim.

60

The Massachusetts Tort Claims Act (“MTCA”), Mass. Gen. Laws
ch. 258, is a limited waiver of sovereign immunity for torts by
public employees. Under the MTCA, “public employers” are liable
for “injury or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of any
public employee while acting within the scope of his office or
employment, in the same manner and to the same extent as a
private individual under like circumstances.” Mass. Gen. Laws
ch. 258, § 2.
At the outset, the CSC argues that it cannot be subject to
a tort action because it is not a “public employer” within the
meaning of the MTCA. The MTCA’s definition of “public employer”
states that “[w]ith respect to public employees of a school
committee of a city or town, the public employer for the
purposes of this chapter shall be deemed to be said respective
city or town.” Mass. Gen. Laws ch. 258, § 1. Under that
provision, the Town is properly named as a public employer
defendant but the CSC is not.
The liability of a public employer under section 2 of the
MTCA is subject to several exclusions, listed in Mass. Gen. Laws
ch. 258, § 10. The Town invokes the exclusion in section 10(j),
under which it retains immunity from suit for claims “based on
an act or failure to act to prevent or diminish the harmful
consequences of a condition or situation, including the violent
61

or tortious conduct of a third person, which is not originally
caused by the public employer or any other person acting on
behalf of the public employer.” Id. § 10(j). The Town argues
that because of that section, it cannot be held liable for
failing to prevent student-on-student bullying that is “not
originally caused by” the Town.
The Supreme Judicial Court has “construed the ‘original
cause’ language to mean an affirmative act (not a failure to
act) by a public employer that creates the ‘condition or
situation’ that results in harm inflicted by a third party.”
Kent v. Commonwealth, 771 N.E.2d 770, 775 (Mass. 2002) (citing
Brum v. Dartmouth, 704 N.E.2d 147, 154–55 (Mass. 1999)). An
affirmative act of a public employer is the “original cause” of
a “condition or situation” that results in harmful consequences
only if the act “materially contributed to creating the specific
‘condition or situation’ that resulted in the harm.” Id. at 775–
76.
The plaintiffs argue that their negligence-based claims
against the Town can proceed for two reasons. First, they argue
that the “sports culture” custom, as well as the individual
defendants’ treatment of Matthew, was the “original cause” that
emboldened CHS students to bully Matthew without fear of
discipline. Second, the plaintiffs point to the exception to the
exclusion in section 10(j)(1), which allows a plaintiff to
62

recover on “any claim based upon explicit and specific
assurances of safety or assistance, beyond general
representations that investigation or assistance will be or has
been undertaken . . . provided that the injury resulted in part
from reliance on those assurances.” Mass. Gen. Laws ch. 258,
§ 10(j)(1).
Matthew’s negligence claims survive dismissal. Matthew
adequately pleads that the original cause of the injuries he
suffered was an affirmative act by the school that placed him in
an unsupervised overnight sports environment with known bullies.
Once the municipality is shown to be the “original cause” of the
injury, then a negligence action can be maintained for a
subsequent “act or failure to act to prevent or diminish the
harmful consequences of . . . violent or tortious conduct of a
third person.” Mass. Gen. Laws ch. 258, § 10(j). The Town cites
a number of decisions in which a court found that a municipality
was immune from suit for failing to prevent student-on-student
harassment. See Harrington v. City of Attleboro, 172 F. Supp. 3d
337, 348–49 (D. Mass. 2016); Hankey, 136 F. Supp. 3d at 75; Doe
v. Bradshaw, No. CIV.A. 11-11593-DPW, 2013 WL 5236110, at *12
(D. Mass. Sept. 16, 2013); Parsons ex rel. Parsons v. Town of
Tewksbury, No. 091595, 2010 WL 1544470, at *4 (Mass. Super. Ct.
Jan. 19, 2010). Those cases are distinguishable because none of
those cases involved allegations that the school took
63

affirmative actions to sponsor an off-campus athletic camp
supervised by school personnel.
The plaintiffs also rely on section 10(j)(1) to survive
dismissal under the MTCA. The municipal defendants made explicit
and specific assurances of safety or assistance to Matthew after
the rape. Under section 10(j)(1), “by ‘explicit’ the Legislature
meant a spoken or written assurance, not one implied from the
conduct of the parties or the situation, and by ‘specific’ the
terms of the assurance must be definite, fixed, and free from
ambiguity.” Lawrence v. City of Cambridge, 664 N.E.2d 1, 3
(Mass. 1996). Superintendent Tiano’s statement that “We have
teachers in the hallways that monitor things and he will be
fine,” Compl. ¶ 100, meets that standard.
The Town correctly argues that there is a separate
limitation on Matthew’s ability to argue that the Town’s failure
to act to prevent bullying was negligent. The discretionary
function exclusion in section 10(b) retains immunity for “any
claim based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part
of a public employer or public employee, acting within the scope
of his office or employment, whether or not the discretion
involved is abused.” Mass. Gen. Laws ch. 258, § 10(b). Courts
have clarified that the discretionary function exclusion is
designed to immunize “policy-making or planning,” as opposed to
64

“merely operational” actions. Morgan v. Driscoll, No. CIV.A.
9810766-RWZ, 2002 WL 15695, at *7 (D. Mass. Jan. 3, 2002)
(citing Alake v. City of Boston, 666 N.E.2d 1022, 1024 (Mass.
App. Ct. 1996) (“Decisions that require some discretion, but
that do not involve social, political, or economic policy
considerations are not immunized by § 10(b).”)). A negligence
suit concerning the school’s failure to carry out its
operational policy regarding how to protect students from
bullying, for example, is not barred.
While the negligent infliction of emotional distress claim
survives the MTCA to that same extent, the plaintiffs must plead
that they suffered physical harm resulting from the emotional
distress. To recover for the tort of negligent infliction of
emotional distress, a plaintiff must prove: “(1) negligence; (2)
emotional distress; (3) causation; (4) physical harm manifested
by objective symptomatology; and (5) that a reasonable person
would have suffered emotional distress under the circumstances
of the case.” Payton v. Abbott Labs, 437 N.E.2d 171, 181 (Mass.
1982); see also Rodriguez v. Cambridge Hous. Auth., 823 N.E.2d
1249, 1253 (Mass. 2005) (confirming that physical harm
requirement persists). The plaintiffs have failed to plead any
resulting physical harm manifested by objective symptomatology.
In any event, Matthew’s parents would not be able to
recover for negligent infliction of emotional distress because
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they fail the proximity requirement. Massachusetts law does not
require that a relative claiming negligent infliction of
emotional distress was at the scene of the harm to a family
member, but it does require that “the shock follow[] closely on
the heels of the accident.” Stockdale v. Bird & Son, Inc., 503
N.E.2d 951, 953 (Mass. 1987) (quoting Ferriter v. Daniel
O’Connell’s Sons, 413 N.E.2d 690, 697 (Mass. 1980)). That
requirement has been strictly applied. See Stockdale, 503 N.E.2d
953 (holding that a mother who did not see son’s injured body
until twenty-four hours after an accident at funeral home was
not entitled to recover); Cohen v. McDonnell Douglas Corp., 450
N.E.2d 581, 589–90 (Mass. 1983) (holding that mother who did not
learn of her son’s death in airplane crash until seven hours
after the crash could not recover); Miles v. Edward O. Tabor,
M.D., Inc., 443 N.E.2d 1302, 1305–06 (Mass. 1982) (holding that
a mother who suffered emotional distress as the result of a
doctor’s negligence at her son’s birth, which led to the son’s
death two months later, did not have a cause of action). Under
that standard, Matthew’s parents fail to satisfy the proximity
requirement for bringing a negligent infliction of emotional
distress claim.

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F.

Civil Conspiracy (Count XII, Against Individual
Defendants)

“To establish a civil conspiracy, a plaintiff must
demonstrate that ‘a combination of persons [acted] pursuant to
an agreement to injure the plaintiff.’” Gutierrez v. Mass. Bay
Transp. Auth., 772 N.E.2d 552, 568 (Mass. 2002) (quoting J.R.
Nolan & L.J. Sartorio, Tort Law § 99, at 136 (2d ed. 1989)); see
also Berdell v. Wong, 46 N.E.3d 115 (table), 2016 WL 767610, at
*3 (Mass. App. Ct. 2016) (“In order to establish a civil
conspiracy, a plaintiff must show ‘a common design or an
agreement, although not necessarily express, between two or more
persons to do a wrongful act and, second, proof of some tortious
act in furtherance of the agreement.’” (quoting Aetna Cas. Sur.
Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994)).
The complaint alleges that individual defendants acted in
concert with the families of K.M., G.C., and Z.D. to injure
Matthew. The complaint does not allege any specifics about this
agreement, except that the families’ spokesperson is involved
with a nonprofit organization that supports the CPS. That is not
a plausible basis for conspiracy. The plaintiffs cannot defeat a
motion to dismiss based on conclusory allegations of conspiracy
that are not supported by references to material facts. The
plaintiffs plead no facts to support the existence of an

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agreement to injure Matthew. The plaintiffs fail to state a
civil conspiracy claim.
G.

Loss of Consortium (Count XIV, Against All Defendants)

Massachusetts provides a statutory cause of action for a
parent to recover consortium damages when their parental
relationship is impacted by serious “injuries” to a minor or
dependent child at the hands of a tortfeasor. Mass. Gen. Laws
ch. 231, § 85X. Consortium claims are derivative in nature, so
it requires an underlying tortious act. See Mouradian v. Gen.
Elec. Co., 503 N.E.2d 1318, 1321 (Mass. App. Ct. 1987)
(considering common law spousal consortium claim).
The municipal defendants argue that the consortium statute
only contemplates recovery from a “person.” See Mass. Gen. Laws
ch. 231, § 85X (“The parents of a minor child or an adult child
who is dependent on his parents for support shall have a cause
of action for loss of consortium of the child who has been
seriously injured against any person who is legally responsible
for causing such injury.”). The statutory definition in Mass.
Gen. Laws ch. 4, § 7 -- which applies to all Massachusetts
statutes -- states that the term “person” “shall include
corporations, societies, associations and partnerships,” but it
does not mention municipalities or government entities.
A plain textual reading of Section 85X does not allow
recovery from the municipal defendants. Harrington, 172 F. Supp.
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3d at 354–55 (“Though Massachusetts appellate courts have not
yet addressed whether a town is a ‘person’ under the loss of
consortium statute, they have decided that other statutes using
the word ‘person’ do not include governmental entities.”
(quoting Doe, 2013 WL 5236110, at *14). The plaintiffs point to
one contrary authority that specifically addresses the term
“person” in section 85X, a Massachusetts Superior Court opinion
that reasoned: “The Legislature is presumed to have known the
provisions of G.L. c. 258, § 2, enacted in 1978, and the
decisions interpreting these provisions when it passed G.L. c.
231, § 85X in 1989. Specifically, it was aware that since the
abrogation of sovereign immunity with the passage of c. 258,
municipalities would be liable in tort ‘to the same extent as a
private individual.’ Moreover, the Legislature did not attempt
to expressly exempt municipalities from c. 231, § 85X’s
provisions.” Cavanaugh v. Tantasqua Reg’l Sch. Dist., No.
WOCV201101797A, 2012 WL 676058, at *2 (Mass. Super. Ct. Feb. 14,
2012). That opinion is unpersuasive, since by that logic the
Massachusetts legislature also ought to have been aware of the
general statutory definition for “person” in Mass. Gen. Laws ch.
4, § 7 that far predates the enactment of section 85X. See Long
v. Co-operative League of Am., 140 N.E. 811, 812 (Mass. 1923)
(“It is provided by G. L. c. 4, § 7, cl. 23, that in construing
statutes, unless inconsistent with the manifest intent of the
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Legislature or repugnant to its context, the word ‘person’ shall
include ‘corporations, societies, associations and
partnerships.’”). The plaintiffs fail to state a consortium
claim against the municipal defendants. The plaintiffs do state
a claim with respect to Siragusa and Kender, against whom they
adequately pleaded intentional infliction of emotional distress.
ORDER
The Court ALLOWS in part and DENIES in part the motions to
dismiss (Docket Nos. 28, 30).
On Count I, a § 1983 claim against the municipal
defendants, the plaintiffs fail to state a claim for violations
of substantive due process, the Equal Protection Clause, and
procedural due process. The municipal defendants’ motion to
dismiss, however, is DENIED to the extent that the plaintiffs
state a Monell claim for First Amendment retaliation against the
municipal defendants.
On Count II, a Title IX claim against the municipal
defendants, the municipal defendants’ motion to dismiss is
DENIED.
On Count III, an IDEA claim against the municipal
defendants, the municipal defendants’ motion to dismiss is
ALLOWED.
On Count IV, a § 1983 claim against the individual
defendants, the plaintiffs fail to state a claim for violations
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of substantive due process, the Equal Protection Clause, and
procedural due process. The plaintiffs state a claim for First
Amendment retaliation by defendants Tiano, Moreau, Caliri,
Doherty, Siragusa, Kender, and Cole, but not by Rich. The Court
allows qualified immunity as to Tiano, Moreau, Caliri, and
Doherty as to the retaliation claim but denies qualified
immunity as to Siragusa, Kender, and Cole. The individual
defendants’ motion to dismiss is ALLOWED as to Tiano, Moreau,
Caliri, Doherty, and Rich but DENIED as to Siragusa, Kender, and
Cole.
On Count V, a § 1983 conspiracy claim against the
individual defendants, the individual defendants’ motion to
dismiss is ALLOWED.
On Count VI, a claim for violation of the Massachusetts
Declaration of Rights against the individual defendants, the
individual defendants’ motion to dismiss is ALLOWED.
On Count VII, a claim for violation of the Massachusetts
Civil Rights Act against the individual defendants, the
individual defendants’ motion to dismiss is DENIED as to
Siragusa and Kender, but otherwise ALLOWED.
On Count VIII, a claim for conspiracy to violate the
Massachusetts Civil Rights Act against the individual
defendants, the individual defendants’ motion to dismiss is
ALLOWED.
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On Count IX, a claim for defamation against the individual
defendants, the individual defendants’ motion to dismiss is
ALLOWED.
On Count X, a claim for intentional infliction of emotional
distress against the individual defendants, the individual
defendants’ motion to dismiss is DENIED with respect to Siragusa
and Kender, but otherwise ALLOWED.
On Count XI, a claim for negligent infliction of emotional
distress against the municipal defendants, the municipal
defendants’ motion to dismiss is ALLOWED.
On Count XII, a claim for civil conspiracy against the
individual defendants, the individual defendants’ motion to
dismiss is ALLOWED.
On Count XIII, a claim for negligence against the municipal
defendants, the municipal defendants’ motion to dismiss is
ALLOWED as to the CSC but DENIED as to the Town.
On Count XIV, a claim for loss of consortium against all
defendants, the municipal defendants’ motion to dismiss is
ALLOWED. The individual defendants’ motion to dismiss is DENIED
as to Siragusa and Kender, but otherwise ALLOWED.
In sum, the Court dismisses all claims against Tiano,
Caliri, Moreau, Doherty, and Rich.

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The surviving claims against the Town and/or CSC are Count
I (First Amendment retaliation), Count II (Title IX) and Count
XIII (negligence).
The surviving claims against the individual defendants
Siragusa and Kender are Count IV (First Amendment retaliation),
Count VII (MCRA), Count X (intentional infliction of emotional
distress), and Count XIV (loss of consortium).
The surviving claim against the individual defendant Cole
is Count IV (First Amendment retaliation).
/s/ PATTI B. SARIS________________
Patti B. Saris
Chief United States District Judge

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