Doe1 et al v. Boston Public Schools et al

Filing 41

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Accordingly, Defendants' motions to dismiss [ECF Nos. 29 , 31 , 33 , and 35 ] are GRANTED IN PART and DENIED IN PART. The motions are GRANTED with respect to Cou nts I (Violation of 42 U.S.C. § 1983 as to Gavins), Count II (Violation of 42 U.S.C. § 1983 as to Boston Public Schools and City of Boston) to the extent that it asserts a violation of the right to public education, Count III (Violation of the Massachusetts Civil Rights Act), and Count VI (Loss of Consortium). The motion is DENIED as to all other claims. SO ORDERED.(McDonagh, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN DOE1 and JANE DOE1, on behalf of
their minor child B.G., and JOHN DOE2 and
JANE DOE2, on behalf of their minor child
A.R.,
Plaintiffs,
v.
BOSTON PUBLIC SCHOOLS, CITY OF
BOSTON, TOMMY CHANG, MARTIN J.
WALSH, and AYLA GAVINS,

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Civil Action No. 17-cv-11653-ADB

Defendants.
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
BURROUGHS, D.J.
Plaintiffs John Doe1 and Jane Doe1, on behalf of their minor child B.G., and John Doe2
and Jane Doe2, on behalf of their minor child A.R., allege that Defendants Boston Public
Schools, City of Boston (together with Boston Public Schools, the “Municipal Defendants”),
Thomas Chang, Martin Walsh, and Ayla Gavins failed to take sufficient steps to protect B.G. and
A.R. from sexual and physical assaults committed by another student, A.J., that occurred at the
Mission Hill K-8 School. [See ECF No. 28 (hereinafter “Amended Complaint” or “Am.
Compl.”)]. Plaintiffs assert violations of 42 U.S.C. § 1983, the Massachusetts Civil Rights Act,
Mass. Gen. Laws ch. 12, § 11I, and Title IX, 20 U.S.C. § 1681 and claims for negligence and
loss of consortium. Id. at 6–9. Defendants have separately moved to dismiss. [ECF Nos. 29, 31,
33, 35]. For the reasons set forth below, the motions are GRANTED IN PART and DENIED IN
PART.

I.

BACKGROUND
The following facts are drawn from the Amended Complaint, the well-pleaded

allegations of which are taken as true for purposes of evaluating Defendants’ motion to dismiss.
See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014).
Plaintiffs Mr. Doe1 and Ms. Doe1 reside in Boston, Massachusetts with their daughter,
B.G. Am. Compl. ¶ 1. Plaintiffs Mr. Doe2 and Ms. Doe2 live in West Roxbury, Massachusetts
with their daughter, A.R. Id. ¶ 2. Defendant City of Boston oversees the operation of Defendant
Boston Public Schools. Id. ¶ 4. Defendant Martin Walsh is the Mayor of Boston, and during the
time period relevant to the Amended Complaint, Defendant Tommy Chang was the
Superintendent of the Boston Public Schools and Defendant Ayla Gavins was the principal of the
Mission Hill K-8 School. Id. ¶¶ 5–7.
Plaintiffs allege that B.G., A.R., and others were sexually assaulted by A.J., another
student, when they attended the Mission Hill K-8 School. Some time before October 2014, A.J.
sexually assaulted two fellow students who are not plaintiffs in this action, including by forcibly
exposing their genitals and kissing them in their genital areas. Id. ¶ 14. When school staff
became aware of these sexual assaults, they took no actions to monitor A.J., expel A.J., or warn
other staff about A.J.’s actions. Id. ¶ 15.
During or after October 2014, A.J. sexually assaulted B.G., who was in his class at that
time, by digitally penetrating her. Id. ¶ 16, 21. When school staff became aware of A.J.’s
assault on B.G., a teacher filed a report with the Massachusetts Department of Children &
Families (“DCF”) pursuant to mandated reporter obligations under Mass. Gen. Laws ch. 119, §
51A (“51A Report”). Id. ¶ 16. The Municipal Defendants’ practice and procedure was to
discourage and delay the filing of 51A Reports, and school staff were not trained in the proper

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manner for filing such Reports. Id. ¶ 19. Consistent with this practice, Gavins discouraged staff
from filing the mandatory 51A Reports to DCF about sexual assaults committed by A.J. and
other students, and the teacher who filed the 51A Report concerning B.G.’s assault was fired in
retaliation. Id. ¶ 18.
For several months following the sexual assault by A.J., B.G. remained in the same
classroom as him and lived in fear of being assaulted again. Id. ¶ 21. As a result of her assault,
B.G. suffered physical injuries and severe emotional distress. Id. ¶ 29. In addition to B.G.,
during the 2014-2015 school year, A.J. sexually assaulted four other female students and one
other male student at the Mission Hill K-8 School. Id. ¶ 20. These assaults were reported to
school staff. Id.
During the 2015-2016 school year, A.J. groped A.R. in her breast and genital areas; he
also tried to kiss A.R. and threatened her with physical violence if she refused. Id. ¶ 24. School
staff witnessed these assaults and reported them to Gavins. Id. A.J. also made A.R. expose her
genitals to him by threatening her with physical violence. Id. This assault was also reported to
school staff, including Gavins. Id.
In September 2016, after A.R. was assigned to sit next to A.J. in class, school staff again
witnessed A.J. repeatedly assaulting A.R. and reported the incidents to Gavins. Id. ¶ 25. These
assaults included A.J. forcibly kissing A.R. and touching her chest. Id. Around the same time, a
teacher witnessed A.J. sexually assault another student by touching her genitals and reported that
incident to Gavins. Id. In October 2016, while A.R. played on the playground at the Mission
Hill K-8 School, A.J. grabbed her genitals. Id. ¶ 26. During the 2015-2016 school year, A.R.’s
parents asked school staff for a safety plan for A.R., but Gavins instructed staff not to provide a
safety plan or otherwise respond to the requests. Id. ¶ 23. As a result of the assaults by A.J.,

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A.R. suffered physical injuries and severe emotional distress. Id. ¶ 29.
On June 15, 2017, Plaintiffs filed a complaint in the Massachusetts Superior Court for
Suffolk County. [ECF No. 1-1]. On September 1, 2017, Defendants removed the action to this
Court. [ECF No. 1]. Defendants moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) on September 28, 2017. [ECF Nos. 9, 11, 13, 15, 17]. On July 6, 2018,
the Court granted Defendants’ motions to dismiss without prejudice and allowed Plaintiffs leave
to amend. [ECF No. 25]. On August 13, 2018, Plaintiffs filed the Amended Complaint, and on
August 24, 2018, Defendants moved to dismiss the Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). [ECF Nos. 28, 29, 31, 33, 35]. Plaintiffs filed oppositions to
the Municipal Defendants’ and Gavins’ motions on September 21, 2018. [ECF Nos. 39, 40].
II.

STANDARD OF REVIEW
On a motion to dismiss for failure to state a claim, the Court accepts as true all well-

pleaded facts in the complaint and draws all reasonable inferences in the light most favorable to
the plaintiff. U.S. ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011).
While detailed factual allegations are not required, the complaint must set forth “more than
labels and conclusions,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and it must
contain “factual allegations, either direct or inferential, respecting each material element
necessary to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513
F.3d 301, 305 (1st Cir. 2008) (internal quotations and citations omitted). The facts alleged, taken
together, must “state a claim to relief that is plausible on its face.” A.G. ex rel. Maddox v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 570). “A claim is
facially plausible if supported by ‘factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Eldredge v. Town of

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Falmouth, 662 F.3d 100, 104 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
When assessing the sufficiency of a complaint, the Court first “separate[s] the
complaint’s factual allegations (which must be accepted as true) from its conclusory legal
allegations (which need not be credited).” Maddox, 732 F.3d at 80 (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Next, the Court “determine[s] whether the
remaining factual content allows a ‘reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. (quoting Morales-Cruz, 676 F.3d at 224). “[T]he court may not
disregard properly pled factual allegations, ‘even if it strikes a savvy judge that actual proof of
those facts is improbable.’” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)
(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct,” however, a claim may be dismissed. Iqbal,
556 U.S. at 679.
III.

DISCUSSION
A.

42 U.S.C. § 1983 Claims (Count I, Against Defendant Gavins, and Count II,
Against the Municipal Defendants)

“[T]o state a claim under § 1983, a plaintiff must allege (1) the violation of a right
protected by the Constitution or laws of the United States and (2) that the perpetrator of the
violation was acting under color of law.” Cruz–Erazo v. Rivera-Montanez, 212 F.3d 617, 621
(1st Cir. 2000). Defendants do not contest that they acted under color of law. Rather,
Defendants argue that Plaintiffs have failed to allege the violation of a constitutional right, that
Gavins is protected by qualified immunity, and that Plaintiffs have failed to state a Monell claim
against the Municipal Defendants. [ECF No. 30 at 4–8; ECF No. 32 at 4–7]. Plaintiffs respond
that Defendants can be held liable under a state-created danger theory for the deprivations of

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B.G.’s and A.R.’s right to be free from intrusions into their bodily integrity and their right to
receive a public education, that Gavins is not entitled to qualified immunity because those
constitutional rights are clearly established, and that the Municipal Defendants can be held liable
for policies or customs that caused the constitutional violations. [ECF No. 39 at 4–8; ECF No.
40 at 4–8].
1.

Violation of Right to Bodily Integrity

The Amended Complaint alleges that Gavins and the Municipal Defendants violated the
Constitution by depriving B.G. and A.R. of their liberty interest in bodily integrity. Am. Compl.
¶¶ 35, 43. “In order to establish a substantive due process claim, the plaintiff must first show a
deprivation of a protected interest in life, liberty, or property.” Rivera v. Rhode Island, 402 F.3d
27, 33–34 (1st Cir. 2005). Here, Plaintiffs claim that A.J., and not Defendants, was B.G.’s and
A.R.’s abuser. As a general matter, 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). “That is because the purpose of
the Due Process Clause is to protect the people from the state, not to ensure that the state protects
them from each other.” Rivera, 402 F.3d at 34. However, the Supreme Court in DeShaney
“suggested, but never expressly recognized, the possibility that when the state creates the danger
to an individual, an affirmative duty to protect might arise.” Id. at 34–35 (citing DeShaney, 489
U.S. at 201). While at least eight circuits “have recognized the existence of the state-created
danger theory,” and the First Circuit “has discussed the possible existence” of the theory, the
First Circuit has “never found it applicable to any specific set of facts.” Irish v. Maine, 849 F.3d
521, 526 (1st Cir. 2017). Plaintiffs’ claims rely on this state-created danger theory.
To prevail on a claim based on the state-created danger theory, Plaintiffs must prove “not
only that a government official’s action proximately caused his injuries, but also that these
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actions shock the court’s conscience.” Doe v. Town of Wayland, 179 F. Supp. 3d 155, 165 (D.
Mass. 2016) (citing Lockhart–Bembery v. Sauro, 498 F.3d 69, 77 (1st Cir. 2007)). “The burden
to show state action that shocks the conscience is extremely high, requiring stunning evidence of
arbitrariness and caprice that extends beyond mere violations of state law, even resulting from
bad faith to something more egregious and more extreme.” Id. (quoting Melendez–Garcia v.
Sanchez, 629 F.3d 25, 37 (1st Cir. 2010)). “[W]hether behavior is conscience shocking varies
with regard to the circumstances of the case,” and thus, “[i]n 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 (quoting County of Sacramento
v. Lewis, 523 U.S. 833, 850–52 (1998)).
At this stage, the Court must take as true Plaintiffs’ allegations that: before A.J. assaulted
B.G., school staff knew that A.J. had previously sexually assaulted two other students at the
school by forcibly exposing their genitals and kissing them in their genital areas but took no
actions to ensure that A.J. would not sexually assault other students; on or after October 2014,
A.J. sexually assaulted B.G. by digitally penetrating her; during the 2014-2015 school year, in
addition to B.G., A.J. sexually assaulted four other female students and one male student, and
these assaults were reported to school staff, including Gavins; during the 2015-2016 school year,
school staff observed A.J. grope A.R. in her chest and genital areas and threaten A.R. with
physical violence if she refused to kiss him; during the 2015-2016 school year, A.J. forced A.R.
to expose her genitals to him by threatening her with physical violence if she refused, and this
was reported to school staff; in September 2016, A.R. was assigned to sit next to A.J. and school
staff witnessed A.J. forcibly kiss A.R. and touch her chest; around September 2016, a school
teacher witnessed A.J. sexually assault another student by touching her genitals and reported this

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to Gavins; and in October 2016, A.J. sexually assaulted A.R. by grabbing her genitals over her
clothes while on the playground. Am. Compl. ¶¶ 14–17, 20–22, 24–26. Further, the Court must
credit Plaintiffs’ allegations that: at some point, a 51A Report of child abuse was filed by a
school teacher concerning A.J.’s sexual assault on B.G., but Gavins discouraged staff from filing
51A Reports about A.J.’s other assaults or the sexual assaults committed by other students; one
school teacher was fired in retaliation for filing a 51A Report about A.J.’s sexual assaults; staff
were not properly trained on filing 51A Reports, and the school’s practice was to discourage and
delay the filing of 51A Reports concerning sexual assaults perpetuated by A.J. and other
students; and in response to A.R.’s parents’ request for a safety plan for A.R., Gavins instructed
school staff not to provide one or otherwise respond to the request. Id. ¶¶ 16, 18–19, 23.
The Court finds that Plaintiffs have narrowly alleged sufficient facts to survive the
motions to dismiss their state-created danger claim. First, although it is a very close question,
the Court can infer that by suppressing and delaying the filing of 51A Reports about A.J.’s
sexual assaults and firing a teacher in retaliation for filing such a Report, Defendants’ actions left
B.G. and A.R. more vulnerable to A.J.’s assaults. Under Massachusetts law, specified persons,
including school staff, must report allegations of child abuse to DCF if he or she “has reasonable
cause to believe that a child is suffering physical or emotional injury resulting from . . . abuse
inflicted upon him [or her] which causes harm or substantial risk of harm to the child’s health or
welfare, including sexual abuse.” Mass. Gen. Laws ch. 119, § 51A(a). Section 51A “imposes an
affirmative obligation to report when there is ‘reasonable cause to believe’ abuse or neglect has
taken place and sets a low threshold for what constitutes reasonable cause.” Doe v. Bradshaw,
203 F. Supp. 3d 168, 183 (D. Mass. 2016) (citation omitted). Following the receipt of a 51A
Report, DCF must promptly investigate it, make a written finding of whether the suspected abuse

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is substantiated, and “immediately report to the district attorney and local law enforcement
authorities, a sexually exploited child.” Mass. Gen. Laws ch. 119, § 51B(a).
The affirmative acts of concealment and retaliation alleged in the Amended Complaint
amount to more than just knowledge of A.J.’s assaults or a failure to intervene—by impeding
DCF intervention, Gavins and other school officials plausibly enhanced the threat of harm to
B.G. and A.R. and proximately caused their injuries. Cf. Deshaney, 489 U.S. at 201 (“While the
State may have been aware of the dangers that [minor plaintiff] faced in the free world, it played
no part in their creation, nor did it do anything to render him any more vulnerable to them.”).
Without question, the Amended Complaint lacks a number of crucial details, particularly
concerning the origin, scope, and application of the practice regarding the delayed or suppressed
filing of 51A Reports, the timing of events that should have triggered the filing of 51A Reports,
the extent to which Defendants and other school staff knew about those events, and when they
acquired that knowledge. That being said, there is, just barely, sufficient factual detail to infer
that, because school staff knew that A.J. committed sexual assaults on fellow school children
before he harmed B.G. and A.R. and Gavins discouraged them from filing 51A Reports in
connection with those incidents, the assaults on B.G. and A.R. by A.J. were a foreseeable and
direct result of Defendants’ actions.
Further, while it is an equally close question, the Court finds that Defendants’ actions, as
set forth in the Amended Complaint, shock the conscience. As discussed supra, exactly what
conduct will be conscious-shocking varies according to context, and deliberate indifference may
suffice “where actors have an opportunity to reflect and make reasoned and rational decisions.”
J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 2010) (citation omitted); see also Sanford v. Stiles, 456
F.3d 298, 309 (3d Cir. 2006) (noting that “[t]he level of culpability required to shock the

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conscience increases as the time state actors have to deliberate decreases,” and while “[i]n a
‘hyperpressurized environment,’ an intent to cause harm is usually required,” deliberate
indifference is sufficient “in cases where deliberation is possible and officials have the time to
make ‘unhurried judgments’” (footnotes omitted)). In J.R. v. Gloria, 593 F.3d 73 (2010), the
First Circuit considered whether social workers, by failing to prevent the minor plaintiffs from
suffering sexual abuse in their foster homes, acted with deliberate indifference that amounted to
conscience-shocking conduct, and used the following test: “state officials must have been at least
aware of known or likely injuries or abuse and have chosen to ignore the danger to the child.”
Id. at 80 (citations omitted).
Given that A.J.’s alleged assaults were not sudden or isolated and school staff had an
opportunity to reflect and make reasoned and rational decisions in response, the Court applies the
same deliberate indifference framework that the First Circuit applied in J.R. v. Gloria to find that
the Amended Complaint alleges conscience-shocking behavior by Defendants and other school
staff. Gavins and other school staff knew that A.J. assaulted two other students before he
assaulted B.G. during the 2014-2015 school year. In addition, they knew that that A.J. assaulted
B.G. and five other students during the 2014-2015 school year before he assaulted A.R. during
the 2015-2016 and 2016-2017 school years. See Am. Compl. ¶¶ 14, 16, 20, 23–25. Moreover,
Gavins and other school staff were aware that B.G. and A.R. were specifically vulnerable to
continued abuse by A.J. because they had witnessed or otherwise learned that A.J. assaulted B.G.
and A.R. See id. ¶¶ 16, 20, 23–25. By discouraging and delaying the filing of 51A Reports in
connection with A.J.’s sexual assaults and retaliating against a teacher who filed such a Report,
officials chose to ignore the danger to B.G. and A.R. and aggravated their vulnerability. In short,
school officials’ decision not to report known sexual assaults to DCF in accordance with

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Massachusetts law despite knowing that elementary school-aged children (who are particularly
vulnerable due to their age) had been repeatedly assaulted is sufficiently conscience-shocking to
survive a motion to dismiss.
The Court cautions that where, as here, a private actor harmed B.G. and A.R., affirmative
action (rather than inaction) by school officials is essential to its holding. 1 See Rivera, 402 F.3d
at 36 (“[I]n a state creation of risk situation, where the ultimate harm is caused by a third party,
‘courts must be careful to distinguish between conventional torts and constitutional violations, as
well as between state inaction and action.’” (citation omitted)); Ramos-Pinero v. Puerto Rico,
453 F.3d 48, 55 n.9 (1st Cir. 2006) (“To the extent plaintiffs attempt to ground liability in the socalled ‘state-created danger’ theory, the absence of an affirmative act by the state in creating the
danger is fatal to the claim.”). “Failing to defuse a preexisting danger is not an affirmative act
under the doctrine.” Doe v. Berkeley Cty. Sch. Dist., 189 F. Supp. 3d 573, 577 (D.S.C. 2016)
(collecting cases). If, following discovery, there is no evidence that school officials suppressed
the filing of 51A Reports, retaliated against a teacher for filing such a Report, or committed any
other affirmative act that enhanced the danger to which B.G. and A.R. were exposed, then the
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The Supreme Court and First Circuit have recognized a second exception to the general rule
that a state has no due process obligation to protect individuals from private violence. “[I]n
situations where a state creates a ‘special relationship’ because of ‘the limitation which [the
state] has imposed on [an individual’s] freedom to act on his own behalf,’ its subsequent failure
to protect an individual may amount to a substantive due process violation.” J.R. v. Gloria, 593
F.3d 73, 79 (1st Cir. 2010) (quoting Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir.2005)); see
also DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989) (“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.”). “As a general matter, courts have declined to find a ‘special
relationship’ between a public school and its students,” Thomas v. Town of Chelmsford, 267 F.
Supp. 3d 279, 297 (D. Mass. 2017), although the First Circuit has recognized the possibility that
“perhaps in narrow circumstances” a school or school employees might have a “‘specific’ duty”
to render aid to a student in peril, Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999).
Plaintiffs here do not rely on a “special relationship” theory and therefore must demonstrate
affirmative action by school officials in order to establish a constitutional violation.
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Court will revisit this finding on summary judgment.
2.

Violation of Right to Public Education

Plaintiffs also claim that the actions of Gavins and the Municipal Defendants deprived
B.G. and A.R. of their right to a public education. [ECF No. 39 at 7]; Am. Compl. ¶¶ 35, 43. As
Plaintiffs acknowledge, public education is not a fundamental right guaranteed by the
Constitution. [ECF No. 39 at 7]; see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35
(1973). Although the Amended Complaint does not state the source of the constitutional right
that Plaintiffs assert, in their opposition to Gavins’ motion to dismiss, Plaintiffs clarify that they
claim B.G. and A.R. were denied equal access to public education under the Fourteenth
Amendment’s Equal Protection Clause. [ECF No. 39 at 7].
The Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To state an equal
protection claim, a plaintiff must allege that he or she “was treated differently from others
similarly situated . . . based on impermissible considerations.” Clark v. Boscher, 514 F.3d 107,
114 (1st Cir. 2008) (quotation marks and citation omitted). “The Supreme Court has held that
differential treatment based on suspect classifications (race, national origin, religion, or alienage)
is subject to strict scrutiny; differential treatment based on quasi-suspect classifications (gender
or illegitimacy) is subject to intermediate scrutiny; and differential treatment based on all other
classifications simply must survive a rational basis inquiry.” Pineiro v. Gemme, 937 F. Supp. 2d
161, 176 (D. Mass. 2013). “This showing of disparate treatment is a ‘threshold requirement’ of
any equal protection claim.” Lu v. Smith, No. 15-cv-14081-DJC, 2016 WL 4595206, at *3 (D.
Mass. Sept. 2, 2016) (quoting Ayala-Sepulveda v. Municipality of San German, 671 F.3d 24, 32
(1st Cir. 2012)).
Plaintiffs here claim that “the sexual assaults on [B.G. and A.R.] resulted in invasion of
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their bodily integrity, physical injuries, emotional distress, and humiliation” and that “these
incidents transformed the school from a place of learning and safety into a nightmare where
[B.G. and A.R.] lived in fear of being assaulted again and continued to relive their own traumatic
experiences.” [ECF No. 39 at 7]. Plaintiffs have provided no allegations that they were treated
differently from others similarly situated, however, and the Amended Complaint is silent as to
the treatment of others. For these reasons, without examining the extent to which a right to
public education may be cognizable under Section 1983, Plaintiffs’ equal protection claim must
be dismissed.
3.

Qualified Immunity

Gavins argues that she is entitled to qualified immunity because her alleged conduct did
not violate a clearly established statutory or constitutional right that a reasonable person would
have known about. [ECF No. 32 at 6–7]. Plaintiffs respond that Gavins is not entitled to
qualified immunity because the constitutional rights to bodily integrity and access to education
are “beyond debate,” and that any reasonable school administrator would understand that taking
actions to prevent and delay the reporting of sexual assaults is a violation of those rights. 2 [ECF
No. 39 at 8].
Qualified immunity protects public officials, in their individual capacity, “from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); see also White v. Pauly, 137 S. Ct. 548, 551 (2017) (similar); M.M.R.Z. ex rel. Ramirez-Senda v. Puerto Rico, 528 F.3d 9, 12–13 (1st Cir. 2008) (noting that
“qualified immunity does not apply to official capacity claims”). The qualified immunity
2

As explained supra, Plaintiffs have failed to state a deprivation of a constitutional right to
public education under the Fourteenth Amendment’s Equal Protection Clause.
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doctrine balances two interests: (1) “the need to hold public officials accountable when they
exercise power irresponsibly” and (2) “the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231
(2009).
To determine whether a defendant is entitled to qualified immunity, the Court undertakes
a two-step inquiry to determine: “(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) (citing Pearson, 555 U.S. at 232). The “clearly established” prong has two subparts. “The first sub-part requires the plaintiff to identify either ‘controlling authority’ or a
‘consensus of cases of persuasive authority’ sufficient to send a clear signal to a reasonable
official that certain conduct falls short of the constitutional norm.” Alfano v. Lynch, 847 F.3d
71, 75 (1st Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). “The second subpart asks whether an objectively reasonable official in the defendant’s position would have
known that his [or her] conduct violated that rule of law.” Id. (citing Wilson v. City of Bos., 421
F.3d 45, 57–58 (1st Cir. 2005)).
Plaintiff correctly points out that the right to bodily integrity is clearly established, and it
is beyond dispute that, by October 2014, a consensus of persuasive authority clearly established
that state officials could be held liable where they affirmatively and with deliberate indifference
placed an individual in danger that he or she would not otherwise have faced. See Kennedy v.
City of Ridgefield, 439 F.3d 1055, 1061 n.1 (9th Cir. 2006) (collecting cases). The Supreme
Court, however, instructs that “‘clearly established law’ should not be defined ‘at a high level of
generality.’” White, 137 S. Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742

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(2011)); Mullinex v. Luna, 136 S. Ct. 305, 308 (2015) (holding that the “dispositive question is
‘whether the violative nature of particular conduct is clearly established’” (quoting al-Kidd, 563
U.S. at 742)). While qualified immunity 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 (citation omitted); see also McKenney v. Mangino,
873 F.3d 75, 82 (1st Cir. 2017) (“To be sure, ‘the clearly established law’ employed in a
qualified immunity analysis ‘must be particularized to the facts of the case.’” (quoting White,
137 S. Ct. at 552)).
As discussed supra, the constitutional violation adequately pleaded is that, by delaying or
suppressing the filing of 51A Reports concerning sexual assaults perpetuated on minor children,
Gavins was deliberately indifferent to acts of sexual assault perpetrated on B.G. and A.R. by A.J.
in violation of their substantive due process right to bodily integrity. Gavins would not be
entitled to qualified immunity if a reasonable school principal, between October 2014 and
October 2016, would have known that delaying or suppressing the filing of 51A Reports was
deliberately indifferent in the situations that she encountered. The Court finds that, irrespective
of whether the conduct alleged is reprehensible or the harm tragic, Plaintiffs have not met their
burden to show that the existing case law clearly established that the conduct at issue violated
B.G.’s and A.R.’s constitutional rights. See Rivera-Corraliza v. Morales, 794 F.3d 208, 215 (1st
Cir. 2015) (“[W]hen a defendant invokes qualified immunity, the burden is on the plaintiff to
show the inapplicability of the defense.” (citing Quintero de Quintero v. Aponte-Roque, 974
F.2d 226, 228 (1st Cir. 1992)). While “officials can still be on notice that their conduct violates
established law even in novel factual circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002),
as discussed supra, the First Circuit has never found the state-created danger theory applicable to

15

any specific set of facts, let alone in the context of peer-on-peer harassment. Further, Plaintiffs
have not set forth, and this Court has been unable to identify, a consensus of persuasive authority
establishing, beyond debate, that Gavins’ actions were clearly unconstitutional at the time that
B.G. and A.R. were victimized. Thus, although common sense and professional ethics might
seem sufficient to establish that a school principal should have known not to delay or suppress
the filing of 51A Reports, the law requires more. More specifically, to deny Gavins the
protections of qualified immunity, the Court must find that prohibition to be clearly set forth in
existing case law. Because the Court has been unable to find a consensus of authority
establishing that affirmative acts by school officials that lead to or enhance the danger of peeron-peer sexual assault violate students’ due process right to bodily integrity, the Court must find
that she is entitled to qualified immunity and dismiss Count I on that basis.
4.

Monell Liability

The Municipal Defendants argue that Plaintiffs have failed to state a Section 1983 claim
consistent with the requirements of Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Under
Monell, “a municipality may not be held liable under a theory of respondeat 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.’” Thomas v. Town of Chelmsford,
267 F. Supp. 3d 279, 305 (D. Mass. 2017) (quoting Monell, 436 U.S. at 694).
“‘A plaintiff can establish the existence of an official policy by,’ inter alia, ‘showing that
the alleged constitutional injury was caused . . . by a person with final policymaking authority.’”
Walden v. City of Providence, 596 F.3d 38, 55 (1st Cir. 2010) (quoting Welch v. Ciampa, 542
F.3d 927, 941 (1st Cir. 2008)). Whether an official has the requisite level of specific
policymaking authority is a matter of state law. Id. at 56. In Massachusetts, “the school
committee in each city or town has policymaking authority.” Thomas, 267 F. Supp. 3d at 306;
16

see 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 . . . .”). Gavins, as the
principal of the Mission Hill K-8 School, is not a policymaker for the school committee. See
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.”). 3 As the Amended Complaint does not
suggest that any municipal staff who were involved in the alleged misconduct possessed final
policymaking authority for the school committee, Plaintiffs must ground their Monell claim on
the execution of a municipal custom. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 n.10
(1986) (“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.’”).
There are two requirements to prove a Section 1983 claim based on a municipal custom.
First, the custom “must be attributable to the municipality” such that it is “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.” Whitfield v. MelendezRivera, 431 F.3d 1, 13 (1st Cir. 2005) (quoting Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st
Cir. 1989)). “Second, the custom must have been the cause of and ‘the moving force behind’ the
constitutional violation.” Id. (quoting Bordanaro, 871 F.2d at 1156). Evidence of a single
incident of a constitutional deprivation “is insufficient, in and of itself, to establish a municipal
‘custom or usage’ within the meaning of Monell.” Mahan v. Plymouth Cty. House of Corr., 64
3

See also Mass. Gen. Laws ch. 71, § 59B (“Principals . . . shall be the educational administrators
and managers of their schools and shall supervise . . . their schools . . . subject to the supervision
and direction of the superintendent); id. § 59 (“A superintendent . . . shall manage the system in a
fashion consistent with . . . the policy determinations of that school committee.”).
17

F.3d 14, 16–17 (1st Cir. 1995). Evidence of “multiple incidents of misconduct” that suggest a
“systemic pattern of activity,” however, may support an inference of a municipal custom. See
Town of Wayland, 179 F. Supp. 3d at 172–73 (citing Kibbe v. City of Springfield, 777 F.2d 801
(1985); Baron v. Suffolk Cty. Sheriff’s Dep’t, 402 F.3d 225 (2005)). Moreover, a municipality’s
failure to train its employees can be an actionable custom under Section 1983. See City of
Canton v. Harris, 489 U.S. 378, 388–90 (1989). “Triggering municipal liability on a claim of
failure to train requires a showing that municipal decisionmakers either knew or should have
known that training was inadequate but nonetheless exhibited deliberate indifference to the
unconstitutional effects of those inadequacies.” Haley v. City of Bos., 657 F.3d 39, 52 (1st Cir.
2011) (citations omitted).
Here, Plaintiffs claim that school officials had a custom of discouraging and delaying the
filing of 51A Reports about sexual assaults committed by students. Am. Compl. ¶¶ 18–19.
Plaintiffs allege multiple incidents of sexual assault committed by students, including sexual
assaults committed by A.J. on ten classmates, that spanned over three school years. Id. ¶¶ 17,
20–26. In addition, a liberal reading of the Amended Complaint reveals that school staff learned
of many sexual assaults committed by A.J. and were required to file 51A Reports to DCF in
connection with them, but as a result of the school custom, only one 51A Report was ever filed
and, in retaliation for filing that Report, a school teacher was fired. See id. ¶¶ 16, 18–19.
Further, Plaintiffs allege that there was a municipal custom of inadequate training of school staff
on the proper filing of 51A Reports. Id. ¶ 19. Plaintiffs claim that these customs were the
moving force behind the violation of B.G.’s and A.R.’s constitutional right to bodily integrity.
Id. ¶¶ 41–42.
The existence of a municipal custom that discouraged the filing of 51A Reports is a

18

reasonable inference to be drawn from Plaintiffs’ allegations of a systematic pattern of school
staff failing to submit 51A Reports to DCF following multiple sexual assaults. Given that no
51A Reports were filed in connection with known sexual assaults by A.J. on nine children other
than B.G., the Court can also infer that school staff were insufficiently trained on the filing of
such Reports and that this training inadequacy amounted to deliberate indifference in light of
A.J.’s known pattern of sexual assaults. The Amended Complaint could be more fulsome with
respect to the alleged municipal customs, and Plaintiffs will have to overcome significant issues
of proof if they are to prevail at trial. Nonetheless, the Court finds that, at this stage, Plaintiffs
have adequately pleaded municipal liability for violations of B.G.’s and A.R.’s right to bodily
integrity based on the role that municipal customs allegedly played in the constitutional
violations, and they are entitled to discover and present evidence on Count II. The Municipal
Defendants’ motion to dismiss Count II is denied. 4
B.

Massachusetts Civil Rights Act Claim (Count III, Against Gavins)

Gavins argues that the claim based on the Massachusetts Civil Rights Act (“MCRA”),
Mass. Gen. Laws ch. 12, § 11I should be dismissed. “To establish a claim under the [MCRA], ‘a
plaintiff must prove that (1) the exercise or enjoyment of some constitutional or statutory right;
(2) has been interfered with, or attempted to be interfered with; and (3) such interference was by
threats, intimidation, or coercion.’” Glovsky v. Roche Bros. Supermarkets, 17 N.E.3d 1026,
1035 (Mass. 2014) (quoting Currier v. Nat’l Bd. of Med. Exam’rs, 965 N.E.2d 829, 837–38

4

Plaintiffs also allege that the Municipal Defendants’ failure to supervise A.J. caused B.G. and
A.R. to suffer constitutional violations. Supervisory liability cannot be predicated on actions by
students, however, because “it is plain that a student does not have a supervisor-subordinate
relationship with a teacher or school administrator,” and because “a student’s actions cannot
create the underlying constitutional infringement to support supervisory liability because of the
lack of state action.” Thomas v. Town of Chelmsford, 267 F. Supp. 3d 279, 303 (D. Mass.
2017).
19

(Mass. 2012)). “The MCRA is the state ‘counterpart’ to Section 1983 and, in general, is
coextensive therewith.” Mangual v. City of Worcester, 285 F. Supp. 3d 465, 471 (D. Mass.
2018). “The primary difference is that to succeed on an MCRA claim, a plaintiff must also show
that the violation of rights occurred ‘by threats, intimidation or coercion.’” Id. (quoting Bally v.
Northeastern Univ., 532 N.E.2d 49, 52 (Mass. 1989)). For purposes of the act, “threats,
intimidation or coercion” are defined as follows:
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 ‘coercion’ is ‘the application to
another of such force, either physical or moral, as to constrain him [or her] to do
against his [or her] will something he [or she] would not otherwise have done.
Glovsky, 17 N.E.3d at 1035 (quoting Haufler v. Zotos, 845 N.E.2d 322, 335 (Mass. 2006)).
Gavins contends that because the Amended Complaint does not allege that she
threatened, intimidated, or coerced the Plaintiffs, the MCRA claim must be dismissed. [ECF No.
32 at 7–8]. Plaintiffs respond that coercion may be alleged where a defendant maintains
“absolute control and access” over the environment at issue, and that Gavins’ complete control
over the school surroundings and the vulnerability of B.G. and A.R. created a coercive
environment through which she interfered with their rights. [ECF No. 39 at 9]. Further,
Plaintiffs contend that Gavins interfered with the constitutional rights of B.G.’s and A.R.’s
parents using threats, intimidation, and coercion by denying A.R.’s parents’ request to have her
transferred to another school and by interfering with B.G.’s and A.R.’s parents’ attempts to speak
out against the school administration. Am. Compl. ¶ 31.
The Court finds that the factual allegations in the Amended Complaint are insufficient to
give rise to an inference that Gavins interfered with Plaintiffs’ exercise of their constitutional
rights through threats, intimidation or coercion. Although elementary school-aged children are

20

inherently vulnerable, having “complete control” over a school environment is not, itself,
coercive within the meaning of the MCRA in the absence of any allegations that Gavins applied
“physical or moral force” to B.G. or A.R. “to constrain [them] to do against [their] will
something [they] would not otherwise do.” Goddard v. Kelley, 629 F. Supp. 2d 115, 128 (D.
Mass. 2009). 5 Moreover, even if Gavins’ denial of A.R.’s parents’ request to transfer her to a
different school were somehow coercive, the Amended Complaint does not suggest how that act
interfered with the exercise of any constitutional right. Finally, the assertion that Gavins
interfered with B.G.’s and A.R.’s parents’ attempts to speak out against the school administration
is wholly conclusory and devoid of any underlying factual support, and is therefore inadequate to
state a claim under the MCRA. Accordingly, Gavins’ motion to dismiss Count III is granted.
C.

Title IX, 20 U.S.C. § 1681 Claim (Count IV, Against the Municipal
Defendants)

The Municipal Defendants seek dismissal of Plaintiffs’ claims based on Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681. Title IX 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). There are two types of sexual harassment in the
educational milieu that may constitute gender-based discrimination actionable under Title IX: (1)
5

Plaintiffs cite to Chao v. Ballista, 772 F. Supp. 2d 337 (D. Mass. 2011) for the proposition that
“[c]oercion can be sufficiently alleged based on an environment where the defendant had
absolute control and access.” [ECF No. 39 at 9]. In Chao, the court denied summary judgment
as to an MCRA claim brought by a prisoner who had engaged in a sexual relationship with a
guard. Chao, 772 F. Supp. 2d at 360. In finding an inference of coercion sufficient to survive
summary judgment, the court cited specific facts in the record beyond the nature of the prison
environment, noting that the guard had coerced the plaintiff “with the additional benefit of
talking to her children with his cell phone or the privilege of keeping contraband” and the
plaintiff understood the guard to have made an implicit “threat of what would happen if she
refused” to continue the relationship. Id. Thus, Chao does not support Plaintiffs’ contention that
the fact of Gavins’ control over the school environment, alone, is sufficient to find coercion.
21

quid pro quo harassment, which is not implicated in this case, and (2) hostile environment
harassment, which “covers acts of sexual harassment sufficiently severe and pervasive to
compromise or interfere with educational opportunities normally available to students.” Frazier
v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002).
“Student on student harassment can be actionable” under Title IX. Morgan v. Town of
Lexington, 823 F.3d 737, 745 (1st Cir. 2016) (citing Davis v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 643 (1999)). “[A] recipient of funding from the United States Department of
Education may be liable for damages if ‘its deliberate indifference to [student on student] sexual
harassment “subjects” its students to harassment.’” Porto v. Town of Tewksbury, 488 F.3d 67,
72 (1st Cir. 2007) (quoting Davis, 526 U.S. at 644) (alterations omitted). “[A] funding recipient
is not liable under Title IX for all student-on-student sexual harassment.” Id. Rather, “the
plaintiff must show (1) that he or she was subject to ‘severe, pervasive, and objectively
offensive’ sexual harassment by a school peer,” “(2) that the harassment caused the plaintiff to
be deprived of educational opportunities or benefits,” (3) that the school “knew of the
harassment, (4) in its programs or activities and (5) it was deliberately indifferent to the
harassment such that its response (or lack thereof) is clearly unreasonable in light of the known
circumstances.” Id. at 72–73. If the school “takes timely and reasonable measures to end the
harassment, it is not liable under Title IX for prior harassment,” but “if it learns that its measures
have proved inadequate, it may be required to take further steps to avoid new liability.” Wills v.
Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 285–88 (1998)).
First, citing no case law, the Municipal Defendants argue that Count IV must be
dismissed because Plaintiffs have not sufficiently alleged that B.G. or A.R. was subject to severe

22

or pervasive harassment, because “even if you take [Plaintiffs’] First Amended Complaint at face
value, B.G. was allegedly sexually assaulted once and A.R. was allegedly sexually [assaulted]
three times by their classmate A.J.” [ECF No. 30 at 9]. The Court disagrees that one incident
(let alone three incidents) of sexual assault on an elementary school-aged child, as detailed in the
Amended Complaint, could never, as a matter of law, constitute severe, pervasive, and
objectively offensive harassment. “[A] single instance of peer-on-peer harassment theoretically
might form a basis for Title IX liability if that incident were vile enough and the institution’s
response, after learning of it, unreasonable enough to have the combined systemic effect of
denying access to a scholastic program or activity.” Fitzgerald v. Barnstable Sch. Comm., 504
F.3d 165, 172–73 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009); see also Davis,
526 U.S. 629, 652 (1999) (noting that “in theory, a single instance of sufficiently severe one-onone peer harassment” could be “serious enough to have the systemic effect of denying the victim
equal access to an educational program or activity”). At this early stage in the litigation,
Plaintiffs have alleged sufficient facts from which the Court can infer that the sexual assaults by
A.J. “had a concrete, negative effect on [B.G.’s and A.R.’s] ability to receive an education.”
Davis, 526 U.S. at 654.
Second, the Municipal Defendants argue that neither B.G. or A.R. were deprived of any
educational benefit. [ECF No. 30 at 9]. The Amended Complaint alleges that, following A.J.’s
assault on B.G., he continued to interact with her at school, causing B.G. to relive the trauma of
her assault and depriving B.G. of her education. Am. Compl. ¶ 21. Further, the Amended
Complaint alleges that the sexual assaults by A.J. severely disrupted B.G.’s and A.R.’s education
and deprived them of educational opportunities and benefits, because they lived in fear of being
sexually assaulted again. Id. ¶¶ 30, 50. At the pleading stage, these allegations are sufficient to

23

survive a motion to dismiss.
Finally, the Municipal Defendants argue that the Court should dismiss Plaintiff’s Title IX
claim because Plaintiffs have failed to allege that they acted with deliberate indifference. [ECF
No. 30 at 8–10]. Specifically, the Municipal Defendants contend Plaintiffs concede that the
school filed a 51A Report and moved A.J. to a different classroom following the assault on B.G.
[Id. at 9]. Plaintiffs respond that the Amended Complaint alleges deliberate indifference to
A.J.’s harassment by asserting that Defendants: were aware of A.J.’s behavior as early as
October 2014, although his sexual assaults continued through the 2016-2017 school year; kept
A.J. placed in the classroom with his victims; failed to notify school staff of A.J.’s past behavior;
refused to provide safety plans for his victims; discouraged formal reporting of the incidents;
fired a teacher who filed a 51A Report about A.J.’s assault on B.G.; took no preventive action
after school staff members witnessed and reported to their superiors that A.J. sexually assaulted
B.G. and A.R. (and others); and failed to provide adequate supervision. [ECF No. 40 at 10].
The Supreme Court has held that a school is deliberately indifferent to student-on-student
sexual harassment when its “response to the harassment or lack thereof is clearly unreasonable in
light of the known circumstances.” Davis, 526 U.S. at 648. The deliberate indifference standard
“demands that a funding recipient be shown to have had actual knowledge of the harassment,”
which requires that “the official who is informed of the alleged harassment be a person who, at a
minimum, has the authority to institute corrective measures.” Santiago v. Puerto Rico, 655 F.3d
61, 73–74 (1st Cir. 2011). The Amended Complaint, in multiple respects, lacks critical details as
to which school officials learned of A.J.’s harassment, when they acquired that knowledge, and
whether those persons had control over his behavior or the authority to take corrective action.
Plaintiff’s allegations that the school district had knowledge of and failed to remedy the

24

sustained peer to peer sexual harassment and the repeated battery of children may give rise to
liability, although determining which school officials had actual knowledge of the harassment
and who exercised authority for the purposes of Title IX will necessarily be a fact-based inquiry.
At a minimum, as described supra, the Court finds that Plaintiffs have plausibly alleged
that the Municipal Defendants were deliberately indifferent to A.J.’s assaults based on the
allegations that Gavins discouraged staff from filing 51A Reports about A.J.’s sexual assaults
and that one teacher was fired in retaliation for filing such a Report. Am. Compl. ¶¶ 18–19; see
Stiles ex rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 852 (6th Cir. 2016) (“The deliberate
indifference standard used for proving a § 1983 equal protection violation in peer harassment
cases is “substantially the same” as the deliberate indifference standard applied in Title IX
cases.”). If true, these allegations would demonstrate a clearly unreasonable response to A.J.’s
sexual assaults by the Municipal Defendants. Accordingly, the motion to dismiss Count IV is
denied.
D.

Negligence Claim (Count V, Against the Municipal Defendants)

A.R. has asserted a negligence claim against the Municipal Defendants. The Municipal
Defendants argue that her negligence claim is barred by a provision of the Massachusetts Tort
Claims Act (“MTCA”) that immunizes a public employer from “any claim based on an act or
failure to act to prevent or diminish the harmful consequences of a condition or situation,
including the violent or tortious conduct of a third person, which is not originally caused by the
public employer.” Mass. Gen. Laws ch. 258 § 10(j). “This exception ‘eliminates government
liability for a public employer’s act or failure to act to prevent harm from the wrongful conduct
of a third party unless the condition or situation was “originally caused” by the public
employer.’” T.K. v. Town of Barnstable, No. 17-cv-11781-DJC, 2018 WL 3748166, at *6 (D.

25

Mass. Aug. 6, 2018) (quoting Cormier v. City of Lynn, 91 N.E.3d 662, 666 (Mass. 2018)). “For
a public employer’s conduct to constitute an ‘original cause’ the public employer must have
engaged in an ‘affirmative act (not a failure to act)’ that ‘materially contributed to creating the
specific ‘condition or situation’ that resulted in the harm.’” Hankey v. Town of ConcordCarlisle, 136 F. Supp. 3d 52, 75–76 (D. Mass. 2015) (quoting Kent v. Commonwealth, 771
N.E.2d 770, 775–76 (Mass. 2002)); see also T.K, 2018 WL 3748166, at *6 (“Failure to address
the violent or tortious conduct after the fact amounts to failure to mitigate harm, which is barred
by § 10(j).” (citations omitted)). “Both the language of § 10(j) and the decisions of
[Massachusetts] courts make clear that at least in some circumstances, a public employer’s
affirmative act can serve as the ‘original cause’ of a harmful condition or situation, and thus as a
basis for liability, even when the harm is effected by ‘the violent or tortious conduct of a third
person.’” Gennari v. Reading Pub. Sch., 933 N.E.2d 1027, 1030 (Mass. App. Ct. 2010) (citing
Bonnie W. v. Commonwealth, 643 N.E.2d 424, 425–27 (Mass. 1994)).
Here, A.R. advances several theories of negligence: that school officials failed to
supervise A.R. and keep her safe from A.J.; that Gavins discouraged school staff from filing 51A
Reports about A.J.’s assaults; that Gavins instructed staff to refuse to provide a safety plan or
respond to requests from A.R.’s parents in the 2015-2016 school year; and that staff assigned
A.R. to sit next to A.J. in the 2016-2017 school year, after it was reported that she had previously
been assaulted by him. Am. Compl. ¶¶ 18–19, 23–25, 54. Section 10(j) bars A.R.’s claim for
negligent supervision because it is “based on the failure to prevent or mitigate a harm, rather than
participation in the initial injury-causing circumstance.” Pettengill v. Curtis, 584 F. Supp. 2d
348, 366 (D. Mass. 2008) (quoting Armstrong v. Lamy, 938 F. Supp. 1018, 1044 (D. Mass.
1996)). A.R.’s remaining theories, however, allege affirmative acts by school officials. The

26

causal link between those acts and A.R.’s injuries is not so remote that the Court can find as a
matter of law that they are not an “original cause” of her injuries within the meaning of Section
10(j). If there is evidence that those acts in fact occurred and materially contributed to the
situation that resulted in A.R.’s harm, and school officials failed to exercise due care, then
although A.J.’s assaults on A.R. are arguably the more immediate cause of her injuries, the
Municipal Defendants would be subject to liability under the MTCA. Thus, the Municipal
Defendants’ motion to dismiss Count V is denied. 6
E.

Loss of Consortium, Mass. Gen. Laws ch. 231, § 85X Claim (Count VI,
Against Defendants Gavins, Walsh, and Chang)

Mr. Doe2 and Ms. Doe2 bring claims against Gavins, Walsh, and Chang for loss of
consortium pursuant to Mass. Gen. Laws ch. 231, § 85X. Gavins, Walsh, and Chang argue that
the loss of consortium claim is deficient because it is a negligence-based claim and the MTCA
bars any negligence claims against them. [ECF No. 32 at 9; ECF No. 34 at 4–5; ECF No. 36 at
4–5].
“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.” Thomas, 267 F. Supp. 3d at 315 (citing Mass. Gen.
Laws ch. 231, § 85X). “[A] claim for loss of consortium cannot be supported without an
underlying tortious act.” Doe v. Bradshaw, No. 11-cv-11593-DPW, 2013 WL 5236110, at *14
(D. Mass. Sept. 16, 2013) (citing Sena v. Commonwealth, 629 N.E.2d 986, 994 (Mass. 1994));

6

The Municipal Defendants also argue that there is “insufficient evidence” to find that they were
negligent because “[t]he evidence suggests that Defendant[s] did in fact meet [their] duty of
reasonable care to A.R. by taking various measures to address the situation occurring between
the students” and “referring the case to the Boston Police Department was not an option.” [ECF
No. 30 at 10–11]. This argument is a fact-based assertion that goes to the merits of A.R.’s claim
and requires factual determinations that are not appropriate at the motion to dismiss stage.
27

see also Thomas, 267 F. Supp. 3d at 315 (same). Gavins, Walsh, and Chang are correct that Mr.
Doe2 and Ms. Doe2 cannot maintain a loss of consortium claim predicated on negligent acts for
which they are immunized by the MTCA. See Doe v. D’Agostino, 367 F. Supp. 2d 157, 178 (D.
Mass. 2005) (finding that negligence-based loss of consortium claims against school officials
were barred by the MTCA). Although the MTCA does not immunize Gavins, Walsh, or Chang
for any intentional torts that they commit in their official capacities, Plaintiffs have not asserted
any intentional tort claims against them. Accordingly, Count VI will be dismissed.
IV.

CONCLUSION
Accordingly, Defendants’ motions to dismiss [ECF Nos. 29, 31, 33, and 35] are

GRANTED IN PART and DENIED IN PART. The motions are GRANTED with respect to
Counts I (Violation of 42 U.S.C. § 1983 as to Gavins), Count II (Violation of 42 U.S.C. § 1983
as to Boston Public Schools and City of Boston) to the extent that it asserts a violation of the
right to public education, Count III (Violation of the Massachusetts Civil Rights Act), and Count
VI (Loss of Consortium). The motion is DENIED as to all other claims.
SO ORDERED.
March 1, 2019

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

28