T. v. Raymond School District, SAU 33 et al
Filing
64
/// ORDER granting in part and denying in part 28 (Sealed) MOTION for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(jab)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Bethany T., as next friend and
on behalf of T.T., a minor,
Plaintiff
v.
Case No. 11-cv-464-SM
Opinion No. 2013 DNH 074
Raymond School District with
School Administrative Unit 33,
Superintendent Dr. Jean Richards,
in her individual and official
capacity, Principal Mr. Kirk Beitler,
in his individual and official
capacity, and Assistant Principal
Ms. Jayme Rodriguez, in her
individual and official capacity,
Defendants
O R D E R
Defendants move for summary judgment on all counts (doc. no.
28).
For the following reasons, the motion is granted in part
and denied in part.
Title VI Claim (Count I)
Plaintiff brings her Title VI claim (Count I) against all
defendants.
Individuals, however, cannot be held liable under
that statutory provision.
See Shotz v. City of Plantation, 344
F.3d 1161, 1169-71 & n. 11 (11th Cir. 2003) (collecting cases);
Thomas v. Salem State Univ. Found., Inc., 2011 WL 5007973, at *6
(D. Mass. Oct. 18, 2011); Howard v. Feliciano, 2008 WL 3471295,
at *10 (D.P.R. Aug. 8, 2008).
Summary judgment in favor of the
individual defendants on plaintiff’s Title VI claim is,
therefore, warranted.
Summary judgment on plaintiff’s Title VI claim as asserted
against the school district and the school administrative unit,
however, is not subject to summary disposition.
The central
issue is whether the District was deliberately indifferent to the
alleged student-on-student harassment.1
See Bryant v. Indep.
Sch. Dist. No. I-38, 334 F.3d 928, 931-34 (10th Cir. 2003)
(applying deliberate indifference standard to peer racial
harassment claim under Title VI) (relying on Davis v. Monroe Cty.
Bd. Of Educ., 526 U.S. 629, 641-44 (1999) (applying deliberate
indifference standard to peer harassment claim under Title IX)).
See also Zeno v. Pine Plaines Cent. Sch. District, 702 F.3d 655,
665 (2d Cir. 2012) (applying deliberate indifference standard to
peer racial harassment claim under Title VI); Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 206 & n. 5 (3d Cir. 2001) (same,
1
Defendant also argues that, as a matter of law, the
racial harassment was not “severe, pervasive, and objectively
offensive.” Davis, 526 U.S. at 652. A reasonable jury, however,
could conclude that the harassment, which included a crossburning threat and direct references to the infamous Ku Klux
Klan, was “more than the sort of teasing and bullying that
generally takes place at schools.” Sanches v. Carrollton-Farmers
Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011).
Context is everything in such cases, and that appears, on this
record, to be a disputed factual matter.
2
and noting that Davis’ deliberate indifference standard “applies
equally” to Title VI harassment claims).
Deliberate indifference is shown where the “funding
‘recipient’s response to the harassment or lack thereof [was]
clearly unreasonable in light of the known circumstances.’”
Brodeur v. Claremont Sch. Dist., 626 F. Supp. 2d 195, 209 (D.N.H.
June 12, 2009) (Laplante, J.) (quoting Davis, 526 U.S. at 648).
See also Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 175
(1st Cir. 2007) (The “proper inquiry is limited to whether the
school actions were so lax, so misdirected, or so poorly executed
as to be clearly unreasonable under the known circumstances”)
rev’d on other grounds 555 U.S. 246 (2009).
Although, “[i]n an
appropriate case” a court may decide, as a matter of law, that
the defendant acted with deliberate indifference, Davis, 526 U.S.
at 649, deliberate indifference usually presents a jury question.
See e.g., Patterson v. Hudson Area Schools, 551 F.3d 438, 449-50
(6th Cir. 2009) (“It is for a jury to decide if Hudson’s actions
were ‘clearly unreasonable.’”).
The school district here posits that this is an appropriate
case for summary judgment because the basic facts about what
actions it took in response to the alleged harassment are not in
serious dispute.
Those basic facts, however, give rise to
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competing inferences about the reasonableness of the district’s
actions in light of the known circumstances.
See generally
Rockwell Graphic Sys., Inc. v. DEV Indus., 925 F.2d 174, 180 (7th
Cir. 1991) (Posner, J.) (“[W]hat is reasonable is itself a fact
for purposes of Rule 56 of the civil rules.”); Lipsett v. Univ.
of Puerto Rico, 637 F. Supp. 789, 799 (D.P.R. 1986) (“If from an
agreed set of facts one finds that reasonable jurors could draw
an inference determinative of the opposing party's claim, then
summary judgment would be improper.”), citing Taylor v.
Gallagher, 737 F.2d 134 (1st Cir.1984).
Here, for the reasons
set forth in plaintiff’s brief, “[a] jury could find . . . that
the investigative or the corrective aspect of the District’s
response to the incidents as a whole was so lacking as to amount
to deliberate indifference.”
Brodeur, 626 F. Supp. 2d at 209
(denying motion for summary judgment on Title IX sexual
harassment claim).
See also Patterson, 551 F.3d at 448 (“We
cannot say that, as a matter of law, a school district is
shielded from liability if [it] knows that its methods of
response . . ., though effective against an individual harasser,
are ineffective against persistent harassment against a single
student.
Such a situation raises a genuine issue of material
fact for a jury to decide.”).
4
Section 1983 Equal Protection Claim (Count II)
“Ordinarily, the issue of whether a municipality had a
custom or policy that caused a violation of a plaintiff’s rights
is a jury question.”
Logiodice v. Trustees of Maine Central
Inst., 170 F. Supp. 2d 16, 31 (D. Me. 2001) (citing Trevino v.
Gates, 99 F.3d 911, 920 (9th Cir. 1996)), aff’d 296 F.3d 22 (1st
Cir. 2002).
Nevertheless, summary judgment is “appropriate if,
on the given facts, no reasonable jury could conclude that the
municipality had such a policy or custom.”
Id.
Here, defendants’ argument with regard to policy, practice,
or custom is not well-developed, and is insufficient to support
entry of judgment.
The core of the argument consists of little
more than a general assertion of the absence of policy or
practice evidence.
See Def. Br., doc. no. 28-1, at 29.
But
school principals and superintendents may be “policymakers” for
purposes of school discipline, see e.g., Radideau v. Beekmantown
Cent. Sch. Dist., 89 F. Supp. 2d 263, 268 (N.D.N.Y. 2000), and,
as plaintiff points out, the actions or inactions of policymakers
may evidence a custom or practice of the municipality.
See
generally City of Canton v. Harris, 489 U.S. 378, 388-89 (1989).
There appears to be a triable issue regarding the municipal
defendants’ policies, practices, or customs, at least in that
respect.
5
Defendants suggest that the deliberate indifference standard
for harassment claims brought under the Equal Protection Clause
is higher than, say, the deliberate indifference standard under
Title VI.
Defendants raised the issue for the first time in
their reply brief, and further, cite to and argue from two Second
Circuit Court of Appeals decisions that do not support their
argument.
In those cases the court held that, where plaintiff
alleges that the defendant inadequately responded to racial
harassment, deliberate indifference by the school administrators
is sufficient to establish intentional discrimination in the
equal protection context.
See Destiso v. Cook, 691 F.3d 226, 241
(2d Cir. 2012) (holding that deliberate indifference standard
applies in equal protection context where racial harassment is
alleged); Gant ex re. Gant v. Wallingford Bd. of Educ., 195 F.3d
134, 140 (2d Cir. 1999) (same).
There is no meaningful
difference between the standard applied in those cases and in
Title VI cases, where deliberate indifference in the harassment
context is also regarded as equivalent to intentional
discrimination.
For these reasons, defendants have not met their burden to
show that they are entitled to judgment as a matter of law with
regard to plaintiff’s Section 1983 claim.
summary judgment as to Count II is denied.
6
Defendants’ motion for
Qualified Immunity – Federal Law Claims
The individual defendants say they are entitled to qualified
immunity under the authority of Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982), but the argument is weak and undeveloped.
Defendants conclusively assert that they “were not deliberately
indifferent to the allegations of harassment.”
no. 28-1 at 34.
Def. Br., doc.
But, there is a triable issue of fact regarding
the adequacy of defendants’ response to the harassment, and on
this record, a reasonable jury could find otherwise.
Absolute Immunity Under the Coverdell Act
Defendants claim that they are entitled to absolute immunity
under the Coverdell Act, 20 U.S.C. §§ 6731 et seq.
The Act
provides, in pertinent part, that “no teacher in a school shall
be liable for harm caused by an act or omission of the teacher on
behalf of the school.”
Id. at § 6736.
For immunity to attach,
the “actions of the teacher,” must have been “carried out in
conformity with Federal, State, and local laws,” and the harm
must not have been “caused by willful or criminal misconduct,
gross negligence, reckless misconduct, or a conscious, flagrant
indifference to the rights or safety of the individual harmed by
the teacher.”
Id. at § 6736(a)(2), 6736(a)(4).
7
Because there is a triable issue as to whether defendants
violated Title VI, they do not qualify for Coverdell immunity, as
a matter of law, i.e., as educators who “carried out [their
actions] in conformity with Federal . . . law.”
Moreover,
because the record as it stands could support a jury’s conclusion
that defendants were deliberately indifferent to the harassment,
it necessarily could also support the conclusion that the
defendants were grossly negligent.
Summary judgment on the basis of immunity under the
Coverdell Act is, therefore, unwarranted.
RSA 354-B Claim (Count III)
RSA 354-B:2 authorizes the state attorney general to “bring
a civil action for injunctive or other appropriate equitable
relief” if he “has probable cause to believe the any person has
violated any provision” of the state civil rights act.
Stat. Ann. (“RSA”) 354-B:2.
N.H. Rev.
Defendants move for summary judgment
on plaintiff’s RSA 354-B:2 claim (Count III) on the ground that
only the attorney general is authorized to bring suit under that
statutory provision.
Plaintiff apparently agrees, as she has
offered no objection or challenge to the argument.
8
Summary judgment in favor of all defendants on Count III,
therefore, is warranted.
Intentional Infliction of Emotional Distress (Count IV)
To prove her claim for intentional infliction of emotional
distress, plaintiff must show that defendants (1) acted
intentionally or recklessly; (2) that their acts were extreme and
outrageous; and (3) that their acts caused the plaintiff to
suffer severe emotional distress.
493, 496 (1991).
Morancy v. Morancy, 134 N.H.
Defendants will be liable only if their conduct
was “outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.’”
Mikell v. Sch. Admin. Unit No. 33, 158 N.H. 723, 729 (2009)
(quoting Rest. 2d Torts § 46). The standard’s bar is so high as
to be “formidable.”
Brodeur, 626 F. Supp. 2d at 224 (Laplante,
J.).
Considering the facts of record, and indulging all
reasonable inferences in plaintiff’s favor, there does not appear
to be a triable issue for the jury on the element of “extreme and
outrageous” conduct.
As noted, a jury could find that defendants
had knowledge of the alleged harassment and a duty to act in a
timely and effective manner, but failed — even failed because
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they were deliberately indifferent — though they took some
remedial or preventative action.
However, given the remedial and
preventative steps taken, a jury may well not find deliberate
indifference.
More to the point, on this record a jury could not
reasonably find that defendants’ at most indifferent conduct was
“beyond all possible bounds of decency,” or “utterly intolerable
in a civilized community.”
Here, as in Brodeur, although a
reasonable jury could find that the school administrators acted
with deliberate indifference towards the harassment, their
conduct did not come close to being extreme or outrageous.
See
Brodeur, 626 F. Supp. 2d at 224 (denying summary judgment on
Title IX deliberate indifference claim and granting summary
judgment in favor of defendants on intentional infliction of
emotional distress claim; despite “the stringency of” the
deliberate indifference standard, “the test for intentional
infliction of emotional distress is even higher,” and was not
met) (Laplante, J.).
See also Mikell, 158 N.H. at 730 (“While
there is no question that a teacher falsely reporting misconduct
by a student is a reprehensible act, the circumstances of this
case are simply not ‘beyond all possible bounds of decency.’”).
Summary judgment in favor of defendants is, therefore,
warranted on plaintiff’s intentional infliction of emotional
distress claim (Count IV).
10
Negligence (Count V)
Defendants first argue that they are entitled to immunity
under RSA 507-B on plaintiff’s state law negligence claim (Count
V).2
The statute provides that “[n]o governmental unit shall be
liable in any action to recover for bodily injury, personal
injury or property damage except as provided by this chapter or
as is provided or may be provided by other statute.”
B:5.
RSA 507-
The statute further specifies that “[a] governmental unit
may be held liable for damages in an action to recover for bodily
injury, personal injury or property damage caused by its fault or
by fault attributable to it, arising out of ownership,
occupation, maintenance or operation of all motor vehicles, and
all premises . . .”
RSA 507-B:2.
The statute also provides that the limitations of liability
enjoyed by municipalities are equally available to their
employees, so long as the employees acted “within the scope of
[their] office and in good faith.”
RSA 507-B:4(IV).
Defendants contend that the statute limits permissible
actions against municipalities to those involving personal
injuries arising from a municipality’s operation or maintenance
2
Because summary judgment is granted on the intentional
infliction of emotional distress claim, the statutory immunity
issue is relevant only to the negligence claim.
11
of “motor vehicles” or “premises,” or to those which have been
otherwise “provided by [state] statute.”
Because, say
defendants, plaintiff’s common law claim for negligence is not a
statutory claim, they are entitled to immunity.
The court in Farrelly v. City of Concord, 2012 WL 6643278,
at *1 (D.N.H. Dec. 20, 2012) (McCafferty, M.J.), recently noted
that the scope of immunity under RSA 507-B has “been subject to
little or no development in the opinions of the New Hampshire
Supreme Court.”
Id. (vacating its prior decision that rejected
defendants’ narrow reading of RSA 507-B, and declining
supplemental jurisdiction over state law claims in light of
unsettled nature of state law).
Some New Hampshire cases,
however, as well as a recent decision from this court, support
defendants’ argument that RSA 507:B confers on the municipal
defendants immunity from plaintiff’s negligence claim.
See e.g.,
Farm Family Casualty Ins. Co. v. Town of Rollinsford, 155 N.H.
669, 671 (2007); Bowser v. Town of Epping, No. 218-2009-CV-232
(Rockingham Cty. Superior Court, June 30, 2010); Foley v. Town of
Lee, 871 F. Supp. 2d 39, 53 (D.N.H. 2012) (Laplante).
New Hampshire’s law is hardly settled with respect to RSA
507:B’s reach, but, plaintiff’s failure to meaningfully address
the municipal defendants’ claim to statutory immunity, see Pl.
12
Br., doc. no. 32-1, at 45-46, is construed as a concession that
the school district and the school administrative unit are
entitled to immunity on the negligence claim.
Put differently,
defendants have demonstrated their entitlement to statutory
immunity and plaintiffs have not called that claim into question,
nor shown that a dispute about material facts warrants denial of
the motion.
With regard to the individual defendants, plaintiff has
adequately shown that a material factual dispute exists regarding
their good faith, such that the court cannot say, as a matter of
law, that they are entitled to immunity under RSA 507-B:4(IV).
In addition, the individual defendants are not entitled to
summary judgment on an alternative ground — that there is no
material factual dispute as to whether they were negligent.
the same reasons that a jury could find that defendants were
For
deliberately indifferent to the racial harassment, they could
easily find that they are liable under the less stringent
negligent standard.
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Conclusion
For the foregoing reasons, defendants’ motion for summary
judgment, doc. no. 28, is granted in part and denied in part, as
discussed above.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
May 10, 2013
cc:
Jon N. Strasburger, Esq.
Karen E. Hewes, Esq.
Brian J. S. Cullen, Esq.
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