A. B. v. Manchester School District SAU 37 et al
///ORDER granting in part and denying in part 22 Motion for Summary Judgment; denying 29 Motion for Certification. Counsel shall file a status report, on or before August 9, 2017. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
B.A., Individually and
as p/n/f of J.F.
Civil No. 15-cv-433-JD
Opinion No. 2017 DNH 141
Manchester School District
SAU 37 and Donna M. Varney
O R D E R
B.A. brought suit in state court on her own behalf and on
behalf of her minor and disabled son, J.F., alleging federal and
state claims against the Manchester School District (“MSD”) and
a former teacher in the school district, Donna M. Varney.
defendants removed the case to this court.
summary judgment, and B.A. objects.1
MSD moves for
B.A. moves to certify
questions pertaining to the constitutionality of RSA 507 -B:5 and
:2 to the New Hampshire Supreme Court, and MSD objects.
Motion to Certify
B.A. moves to certify two questions to the New Hampshire
Supreme Court to determine whether RSA 508-B:5 and :2, as
applied in this case, violate the New Hampshire Constitution.
The court previously granted in part Varney’s motion for
partial summary judgment, dismissing B.A.’s claim in Count X and
her procedural due process claim in Count I.
In its response, MSD argues that certification is unnecessary
because the issue can be addressed based on existi ng New
The New Hampshire Supreme Court provides a means for this
court to certify a question of New Hampshire law “which may be
determinative of the cause then pending in the certifying court
and as to which it appears to the certifying court there is no
controlling precedent in the decisions” of the New Hampshire
N.H. Sup. Ct. Rules, Rule 34; see also Old
Republic Ins. Co. v. Stratford Ins. Co., 777 F.3d 74, 86 (1st
On the other hand, “[w]hen state law is
sufficiently clear . . . to allow a federal court to predict its
course, certification is both inappropriate and unwarranted.”
Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 14 (1st Cir.
Whether to certify questions under Rule 34 is a matter
left to the discretion of the court.
Nieves v. Univ. of Puerto
Rico, 7 F.3d 270, 275 (1st Cir. 1993).
As demonstrated below in the discussion of B.A.’s state law
claims, New Hampshire law is sufficiently clear on the
constitutional issues B.A. raises to allow this court to predict
the course the New Hampshire Supreme Court would take.
reason, the court will decide the constitutional challenge
without certifying the questions.
Motion for Summary Judgment
MSD moves for summary judgment on all of B.A.’s claims
against it on the grounds that she cannot prove a constitutional
violation, that statutory and discretionary function immunity
bar her state common law claims, that she has not stated a claim
for “intentional tort,” and that her claim based on the New
Hampshire Constitution is not cognizable.
B.A. objects, arguing
that MSD violated J.F.’s substantive due process right to bodily
integrity and challenging MSD’s assertion of immunity.
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A genuine dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.
The facts and reasonable inferences are taken in the
light most favorable to the nonmoving party.
of Quincy, 835 F.3d 192, 202 (1st Cir. 2016).
McGunigle v. City
“On issues where
the movant does not have the burden of proof at trial, the
movant can succeed on summary judgment by showing ‘that there is
an absence of evidence to support the nonmoving party’s case.’”
OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of
Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)).
J.F. was eight years old when he was assigned to Varney’s
self-contained classroom for the 2012-2013 school year at Jewett
Street School in the MSD.
The students in the classroom had
various disabilities that precluded them from being integrated
into the school’s general population.
The classroom also had two
teaching assistants, Alicia Otis and Brianne Corey.
Varney was a full-time special education teacher at the
Jewett Street School.
She had previously worked in the MSD, at
a different school, as a teacher’s aide.
She received her
degree and certification as a special education te acher in 2007
and began work as a special education teacher at the Jewett
Street School for the 2007 to 2008 school year.
Jennifer Frietas was the MSD Special Education Coordinator.
Frietas, who was a friend of Varney’s and socialized with her
every week, assigned J.F. to Varney’s classroom without first
reading J.F.’s Individualized Education Plan (“IEP”).
Lubelczyk was the principal at the Jewett Street School and had
been in that position since August of 2008.
the MSD Assistant Superintendent.
Karen Burkush was
J.F. was born with impairments, and when he was five, he
was given diagnoses of a significant Pervasive Developmental
Delay and being on the autism spectrum.
He has a limited
ability to express himself through language.
J.F. also has
impairments in his ability to chew and swallow, which causes him
to be at risk of choking and aspiration, and he has experienced
difficulty eating that resulted in periods of weight loss.
addition, J.F. has muscle issues that make it difficult for h im
to walk and to coordinate other functions such as eating.
J.F.’s IEP provided that he needed to be watched during eating
because he could choke or gag on food.
MSD had a “Student Code of Conduct” that provided
principles “to contribute to a safe and productive learning
environment that is of benefit to the entire community.”
to Mot. for S.J. doc. 28, Ex. 28, at 1.
MSD also issued rules
as “Manchester School District Policy.”
In May of 2012, MSD
amended a rule pertaining to the use of physical restraint,
which is identified as “Students 116.2” (“Rule 116.2”).
Rule 116.2 was “adopted to limit the use of student
restraint practices in accord with state law and to define the
circumstances and manner in which physical restrain[t] is deemed
Doc. 28, Ex. 21.
Rule 116.2 also required the
district to “ensure all appropriate personnel are trained in the
use of physical restraint procedures” and provided that
“[t]raining of staff shall include a review of NH RSA Chapter
Obj. to Mot. for S.J. doc. no. 28-21, at p. 2.
Chapter 126-U prohibits the use of dangerous restraints and
behavior control techniques, including restraints or techniques
that obstruct “a child’s respiratory airway or impairs the
child’s breathing,” that involve “pushing on or into the child’s
mouth,” and that “unnecessarily subject the child to ridicule,
humiliation, or emotional trauma.” RSA 126-U:4, I & IV.
training required under Rule 116.2 also included Crisis
The MSD Policy requires teachers and staff to report
suspected abuse of students.3
In addition, teachers, school
officials, school nurses and any other child workers are
required by state law to report instances of suspected child
Frietas testified at her deposition that special education
teachers were included in the personnel to be trained under Rule
Burkush testified at her deposition that the MSD
superintendent told the school principals that they were
RSA Chapter 126-U is titled: “Limiting the Use of Child
Restraint Practices in Schools and Treatment Facilities.”
Although neither party provided a copy of that part of the
MSD policy, Judy Williams, an expert witness retained by B.A.,
refers to MSD Policy 147, “Reporting Abuse/Neglect,” and states
that the policy provided reporting requirements. MSD did not
challenge that statement.
required to implement Rule 116.2.
understood that the training required by Rule 116.2 was not
mandatory and that it was not his responsibility to be sure that
Varney received the training.
Lubelczyk did not start recording
who received training until the 2014 to 2015 school year.
Lubelczyk himself did not receive training until 2016.
Varney received all of J.F.’s school records before the
first day of school in August of 2012 and read the records,
including records that explained that J.F. was medically fragile
and had eating problems.
From that information, Varney knew
that J.F. was at risk for choking and gagging and that he was
weak and unsteady on his feet.
Varney also knew that J.F. was
not eating enough food and that he had lost weight.
Because of J.F.’s issue with eating, Varney used a notebook
to record what J.F. ate during the day.
Varney gave the
notebook to B.A. at the end of the day, and B.A. returned it to
Varney in the morning.4
B.A. usually read Varney’s notes to keep
track of what J.F. was eating and would get help if she did not
understand the words Varney used.
During her deposition, counsel for MSD showed B.A. the
notebook and asked her about a note that Varney wrote, which is
B.A. speaks Spanish and has difficulty communicating in
English. She had a translator for purposes of her deposition
taken in this case.
dated October 9, 2012.
In the note, Varney stated that J.F. had
“an okay day,” that he did not eat his snack, and that when he
refused to eat lunch she took his chair away until he ate about
a third of the food.
B.A. responded that she did not remember
reading the note, did not know that Varney was requiring J.F. to
stand while eating, and that she would have talked to Varney if
she had known of it.
Although nothing in the IEP required or allowed Varney to
force J.F. to eat, Varney undertook coercive methods to address
Alicia Otis, one of the teacher’s aides in Varney’s
classroom, saw Varney force feed J.F. five or more times between
September of 2012 and January of 2013.
Brianne Corey, the other
teacher’s aide, also saw Varney force feed J.F.
In the feeding procedure, Varney would pinch J.F.’s mouth
open with her hands and push food into his mouth.
J.F., who was
at risk of choking and aspirating due to his disabilities, cried
and screamed during this procedure.
When J.F. tried to spit out
the food, Varney covered his mouth with her hand until he
Varney later admitted to the Manchester police that
her force feeding of J.F. was inappropriate.
Otis was concerned that Varney’s roughness would cause J.F.
to have a seizure.
avoid the abuse.
J.F. would try to rock himself to sleep to
The force feeding incidents so exhausted J.F.
that he would put his head on the desk afterwards and sleep.
In addition to the force feeding, Varney forced J.F. to
stand up during lunch if he refused to eat.
occurred more frequently than the force feeding, approximately
three or four days of each school week.
Varney would push on
J.F.’s back to get him to stand and would then take his chair
J.F. reacted with rocking or falling asleep or falling on
the floor and screaming and crying.
Varney also frequently yelled at J.F. to get him to eat.
Otis believed Varney yelled at J.F. to scare him into eating and
to show him that she was in charge.
Other staff members at the
Jewett Street School heard Varney yelling and asked Otis about
During the fall, Otis and Corey discussed their
disagreement with Varney’s tactics and what to do about it.
During the 2011 to 2012 school year, the school nurse heard
Varney yelling at her students, which she found to be
Although the nurse did not remember specific
dates during her deposition, she testified that she probably
reported the behavior to Lubelczyk then.
continued, however, and the school nurse believes that she
complained to Lubelczyk more than once about Varney’s treatment
of her students.
During the 2012 to 2013 school year, another teacher at the
school told one of Varney’s teacher’s aides that she complained
to Lubelczyk about Varney’s conduct.
Lubelczyk met with Varney
to discuss the tone she used with her students and believed that
Varney understood that she needed to speak reasonably to
Lubelczyk concluded that Varney was using “tough
love” because she wanted her students to succeed.
asserts that he was not aware of any physical abuse by Varney.
The school nurse observed Varney yelling at J.F. to eat more
than once and yelling at him to eat even after he had a feeding
In April of 2013, Otis complained to Lubelczyk about
Varney’s treatment of her students.
A paraprofession al from
another classroom reported an incident that occurred during bus
dismissal on April 10, 2013, when Varney was overly forceful
with one of her students.
Lubelczyk reported the complaints to
Burkush who instructed Lubelczyk that Varney must leave the
building immediately and that the complaints must be reported to
the Department for Children, Youth, and Families.
Varney left the building and never returned.
eventually resigned her position.
Varney was charged with
simple assault based on her treatment of another student in her
A special education expert retained by B.A., Judy
Williams, MEd, CAGS, states that Varney did not have the
appropriate credentials and training to teach a special
The investigation into Varney’s conduct with that child
uncovered abuse of other children in her classroom.
education self-contained classroom.
Williams also states that
Varney’s yelling should have alerted Lubelczyk to closely
monitor Varney’s conduct in the classroom, which Lubelczyk did
B.A. brought suit against MSD and Varney, alleging federal
claims under 42 U.S.C. § 1983 and state law claims.
alleges in Count II that MSD violated J.F.’s rights under the
Fourth and Fourteenth Amendments and alleges in Count III that
MSD violated the Americans with Disabilities Act (“ADA” ) and the
B.A. alleges claims for battery, assault,
and “intentional tort” against Varney in Counts IV, V, and IX.
In Counts VII, VIII, and XI, B.A. alleges that MSD was negligent
in its supervision, custody, care, and education of J.F., that
MSD was negligent in hiring and retaining Varney as a teacher,
and that MSD violated J.F.’s right to equal protection under the
New Hampshire Constitution.
MSD moves for summary judgment on Count II on the grounds
that B.A. cannot prove a violation of the Fourth Amendment,
substantive due process, or a constitutional violation based on
a failure to train.
MSD also contends that B.A. cannot prove a
violation of the ADA or the Rehabilitation Act, that it is
protected from liability on the state law claims by immunity
provided by RSA 507-B:5 and discretionary function immunity,
that Count IX does not state a cause of action, and that B.A.
cannot prove a claim based on the New Hampshire Constitution.
B.A. objects to summary judgment, arguing that her
substantive due process claim in Count II survives summary
judgment because a genuine issue of material fact exists as to
whether MSD was deliberately indifferent to the need to train
and supervise its staff.
She contends that the ADA and
Rehabilitation Act claim in Count III is viable because a
genuine issue of material fact exists as to whether J.F. was a
disabled student in need of accommodation for eating and whether
MSD was deliberately indifferent to J.F.’s needs by failing to
prevent Varney’s actions.
In support of her state law claims, B.A. challenges MSD’s
reliance on RSA 507-B:5 on the ground that statutory immunity,
as applied in this case, violates the New Hampshire
B.A. also argues that discretionary function
immunity does not apply here.
B.A. contends that she should be
allowed to pursue a remedy under the New Hampshire Constitution
if her state law claims against MSD are barred by immunity.
Section 1983 Claim – Count II
B.A. alleges in Count II that MSD violated J.F.’s Fourth
Amendment rights and his Fourteenth Amendment substantive due
In response to summary judgment, B.A. has not
pursued a claim of violation of the Fourth Amendment.
Therefore, MSD is entitled to summary judgment on Count II to
the extent the claim was premised on a violation of the Fourth
MSD also contends that B.A. cannot prove a violation of
substantive due process guaranteed by the Fourteenth Amendment.
In support, MSD argues that Varney’s conduct did not violate
J.F.’s substantive due process rights and that B.A. cannot show
that MSD’s custom or policy caused J.F.’s injury.
B.A. contends the substantive due process claim is premised on a
school district’s duty to supervise and protect severely
disabled students and MSD’s deliberate indifference to the need
to supervise and train Varney.
She further contends that MSD
was deliberately indifferent to J.F.’s substantive due process
right to bodily integrity.
Municipal Liability under Section 1983
To prove that MSD violated J.F.’s substantive due process
rights, B.A. must first show that J.F. was harmed by a
constitutional violation and then that MSD is responsible for
Young v. City of Providence, 404 F.3d 4, 25 (1st
The court concluded, in the context of Varney’s
B.A. does not assert a procedural due process claim against
motion for summary judgment, that a factual dispute remains as
to whether Varney’s treatment of J.F. violated his right to
substantive due process.7
Therefore, whether or not J.F. was
harmed by a constitutional violation cannot be resolved on
With respect to MSD’s violation of J.F.’s substantive due
process rights, § 1983 does not provide a cause of action based
on vicarious liability of a municipality for the conduct of its
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
To hold a municipality liable under § 1983, a plaintiff
must show that the “municipality itself cause[d] the
constitutional violation at issue.”
489 U.S. 378, 385 (1989).
City of Canton v. Harris,
For that reason, a plaintiff must
prove that the municipality’s official policy caused the
Connick v. Thompson, 563 U.S. 51, 60 (2011).
MSD argues that B.A. approved Varney’s abuse of J.F. by not
challenging her conduct in response to an entry in the notebook
passed between Varney and B.A. in which Varney wrote that she
had required J.F. to stand while eating on one day in October of
2012. Even if B.A.’s lack of response to that note could be
deemed to be acquiescence, which is unlikely given the language
issues and other circumstances, MSD cites no case or other
authority to show that a parent can waive a child’s
constitutional rights by failing to object to abuse.
School districts in New Hampshire are treated as
municipalities for purposes of § 1983. See TF v. Portsmouth
Sch. Dist., 2016 WL 3815349, at *2 (D.N.H. July 12, 2016).
“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, 563 U.S. at 61.
municipality’s decision not to train employees “about their
legal duty to avoid violating citizens’ rights may rise to the
level of official government policy for purposes of § 1983” when
the failure to train amounts “to deliberate indifference to the
rights of persons with whom the untrained employees come into
Id. (internal quotation marks omitted); Kennedy v.
Town of Billerica, 617 F.3d 520, 531-32 (1st Cir. 2010).
addition, the deficiency in the municipality’s training or
supervision must be closely related to the plaintiff’s injury.
Canton, 489 U.S. at 391.
Deliberate indifference for purposes of showing an official
policy not to train or supervise requires notice that the
training or supervision is deficient.
Connick, 563 U.S. at 62.
The standard for municipal liability based on a failure to
train is also used to assess municipal liability for a failure
to supervise and other failures to act to prevent constitutional
violations. See, e.g., Mize v. Tedford, 375 F. App’x 497, 500
(6th Cir. 2010); Berg v. County of Allegheny, 219 F.3d 261, 276
(3d Cir. 2000); Davis v. City of Ellensburg, 869 F.2d 1230, 1235
(9th Cir. 1989); E.G. by Gonzalez v. Bond, 2016 WL 8672774, at
*11 (N.D. Tex. Sept. 9, 2016); Consolo v. George, 835 F. Supp.
49, 51 n.1 (D. Mass. 1993).
For that reason, deliberate indifference generally requires “a
pattern of similar constitutional violations by untrained
“A showing of simple or even heightened
negligence will not suffice.”
Bd. of County Comm’rs of Bryan
County v. Brown, 520 U.S. 397, 407 (1997).
In rare cases, a pattern of similar violations may not be
required where the municipality’s knowledge of the highly
predictable consequence of a failure to train or supervise would
be sufficient to show deliberate indifference.
Id. at 63-64
(discussing the exception noted in Canton, 489 U.S. at 390,
That is, deliberate indifference may be shown when there
is a lack of training or supervision and where it is known or
obvious that inadequate training or supervision is highly likely
to cause a violation of constitutional rights.
at 390, n.10.
Canton, 489 U.S.
“A school district may be held liable for
inadequate training, supervision, or hiring where the failure to
train, hire, or supervise amounts to deliberate indifference to
the rights of those with whom [its] employees will come into
Benacquista v. Spratt, 217 F. Supp. 3d 588, 600
(W.D.N.Y. 2016) (internal quotation marks omitted).
B.A. contends that this case falls into the Canton
exception where the need to train and supervise to avoid a
highly likely constitutional violation was sufficiently obvious
that MSD’s failure to do so constitutes deliberate indifference.
B.A. argues that the need to train and supervise special
education teachers in ways to deal with their severely disabled
students to maintain a safe and appropriate environment is well established and obvious.
In support, B.A. cites the opinions
provided by her expert, Judy Williams.
B.A. also contends that
the record supports an inference that the staff and
administration at the school knew Varney had “propensities to
use illegal or highly inappropriate power-based techniques to
control the behavior of disabled students in her self-contained
classroom before and during the 2012-2013 school year.”
It is undisputed that neither Varney nor the teacher’s
aides in her classroom were trained to avoid abusive treatment,
in the lawful and appropriate use of physical restraints , or in
the requirements for reporting abuse.
MSD had a written school
district policy, which included a statement about the use of
physical restraint on students, and a policy that required
reporting suspected abuse.
In addition, state law restricts the
use of physical restraints and abusive treatment of children and
requires teachers and school personnel to report suspected
Further, under the Fourteenth Amendment, every person
has a substantive due process right to bodily integrity .
Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Albright v.
Oliver, 510 U.S. 266, 272 (1994).
The record shows that MSD knew of the risks of harm , which
could include violation of constitutional rights, by the
improper use of physical restraints and abusive treatment
because it promulgated policies to address and train its staff
to avoid those risks.
Indeed, the risks of harm, including the
risk that a disabled child’s substantive due process right to
bodily integrity could be violated in the absence of adequate
training and supervision of teachers, would seem to be obvious.
The magnitude of the risk is reinforced by the New Hampshire
statutes that specifically address the physical restraint and
other abusive treatment imposed by Varney and that require
school officials and staff to report suspected child abuse.
In addition, MSD learned by the end of the 2012 school year
that a special education teacher at another Manchester school
did not have proper training and was using abusive treatment to
control the students.
That teacher was fired and criminally
convicted because of her treatment of the students.
to that incident, Burkush and the superintendent of MSD directed
MSD principals to make sure that their staff knew of the
mandatory reporting obligations and offered training.
however, did not follow up to be sure that the special education
teachers in the district, including Varney and the teacher’s
aides in her classroom, were trained and properly supervised.
Lubelczyk did not ensure that his staff knew of the
mandatory reporting requirements or offer training.
did not mention the 2012 incident in his affidavit or
acknowledge that he was directed to ensure his staff’s
understanding of the reporting requirements.
did not receive the mandatory training until four years later,
Therefore, the facts support an inference that MSD
knew that training was necessary to prevent harm to students in
special education classes but failed to provide training.10
Alternatively, the facts could support a conclusion that it was
obvious that training was necessary.
Further, there is sufficient evidence to raise a factual
dispute as to what Lubelczyk knew about Varney’s treatment of
Although MSD asserts that neither Lubelczyk nor
any other administrator knew that Varney was mistreating her
students, including J.F., the record shows that Lubelczyk had
one or more complaints from the school nurse and another teacher
The teacher’s aides said that Varney’s yelling
could be heard outside her classroom and that other staff
See, e.g., Spady v. Bethlehem Area Sch. Dist., 2016 WL
6995024, at *8 (E.D. Pa. Nov. 29, 2016).
MSD admits that Varney’s yelling at her students, along with
her other treatment of J.F. and his classmates, was improper.
While MSD attempts to excuse Varney’s conduct as well intentioned, the record does not necessarily support that view.
members asked them about Varney’s conduct.
sufficiently concerned to meet with Varney once but concluded
that Varney’s treatment of her students was “tough love.” 12
Lubelczyk did not follow up with Varney to be sure that she was
As such, the facts allow a reasonable inference that
Lubelczyk had notice that Varney required training and
supervision to avoid abusing her students, including J.F., but
failed to provide either.
Even if Lubelczyk did not have actual
notice of the risk of harm to J.F., the prior incident at
another Manchester school should have alerted MSD of the danger
associated with its lack of training and supervision of special
Finally, based on MSD’s own rules and
policies, combined with state and federal constitutional law
aimed at protecting children from abuse, a triable issue exists
as to whether it was obvious that training and supervision were
Lubelczyk does not explain what he meant by “tough love” or
whether his concept of “tough love” complied with MSD policy and
state and federal law. Indeed, Lubelczyk had not been trained
in the MSD policies applicable to the treatment of students.
A failure to take any meaningful action in response to
notice of potential abuse of a child can be a deliberately
indifferent response. Doe by Watson v. Russell County Sch. Bd.,
2017 WL 1374279, at *9 (W.D. Va. April 13, 2017).
necessary to avoid having Varney use inappropriate, illegal, and
harmful control methods on her students.14
The failure to train or supervise must also be closely
related to the constitutional injury.
Canton, 489 U.S. at 391.
As such, the failure to train or supervise must be at least a
partial cause of the constitutional violation.
Melendez-Rivera, 431 F.3d 1, 10 (1st Cir. 2005).
Judy Williams, B.A.’s expert witness, provided her opinion
that Varney should have been trained in Positive Behavioral
Intervention and Crisis Prevention Intervention and in the
requirements of RSA chapter 126-U, all of which were required
training under MSD policy.
If properly trained, Varney would
have known not to use power-based control techniques, such as
yelling, and would have known to de-escalate rather than
escalate the behavior of her students.
Williams also believes
that Lubelczyk should have provided supervision of Varney,
including interviewing other staff members who worked with her
and near her, but did not do so, despite warnings about her
When state and federal law provide “extensive guidance” to
prevent abuse of students, the school’s “complete failure to
train teachers and employees on how to spot, investigate, and
address” such conduct amounts to deliberate indifference. Doe
by Watson, 2017 WL 1374279, at *8.
Williams’s opinion is that if MSD had supervised
Varney, she would not have been teaching or would not have used
treatment that violated the law.
As such, a factual issue remains as to the causation
element of showing official policy for purposes of MSD’s
liability under § 1983.
Substantive Due Process Claim That Remains for Trial
B.A.’s claim against MSD in Count II is that MSD violated
J.F.’s substantive due process rights under the Fourteenth
Amendment by being deliberately indifferent to the need to train
and supervise Varney and the teacher’s aides in Varney’s
classroom to prevent the abuse of J.F. that occurred.
ADA and Rehabilitation Act Claim – Count III
In Count III, B.A. contends that MSD violated the ADA and
the Rehabilitation Act by depriving him of services he was
entitled to receive.
B.A. focuses the claim more narrowly in
her objection to summary judgment, stating that J.F. was a
disabled student who required accommodations for eating and that
MSD was deliberately indifferent to J.F.’s need for
accommodation and was deliberately indifferent to Varney’s abuse
of J.F. arising from his eating disability.
MSD seeks summary
judgment on the ground that the record lacks evidence that
Varney’s treatment of J.F. was intentionally discriminatory.
Title II of the ADA and the Rehabilitation Act prohibit
schools that receive federal funds from discriminating against a
student based on a disability and from excluding a student with
a disability from school programs.
Nunes v. Mass. Dep’t of
Corr., 766 F.3d 136, 144 (1st Cir. 2014); Doe v. Bradshaw, 203
F. Supp. 3d 168, 191 (D. Mass. 2016).
To succeed on a
disability discrimination claim of this type, a plaintiff must
show “(1) that he is a qualified individual with a disability;
(2) that he was either excluded from participation in or denied
the benefits of some public entity’s services, programs, or
activities or was otherwise discriminated against; and (3) that
such exclusion, denial of benefits, or discrimination was by
reason of his disability.”
170-71 (1st Cir. 2006).
Buchanan v. Maine, 469 F.3d 158,
While the ADA and Rehabilitation Act do
not require that specific services be provided to qualified
disabled persons, both Acts prohibit discrimination against
qualified disabled persons with respect to services that are
Id. at 174.
MSD does not dispute that J.F. is a qualified individual
with a disability and apparently does not dispute that J.F. did
not receive reasonable accommodation for his eating disability.
In support of summary judgment, MSD argues that J.F. cannot
recover compensatory damages for a violation of the ADA or the
Rehabilitation Act absent intentional discrimination.
Nieves-Marquez v. Puerto Rico, 353 F.3d 106, 126-27 (1st Cir.
MSD contends that Varney did not act with discriminatory
animus but instead was attempting to address J.F.’s medical
issue of “failing to thrive and losing weight.”
reason, MSD contends, Varney was trying to help J.F. rather than
discriminating against him.
Varney’s motives in force feeding J.F. are unclear.
asked about her actions to force J.F. to eat during her
deposition, Varney invoked the protection of the Fifth
Amendment, which could lead to an inference that her intentions
were not appropriate.15
In addition, Varney also continued to
force J.F. to eat even after the feeding tube was implanted.
When the school nurse told Varney that J.F. did not have to be
fed, Varney responded that J.F. was being defiant.
Therefore, MSD has not shown that it is entitled to summary
judgment on the ADA and Rehabilitation Act claim in Count III
based on a lack of evidence of discriminatory intent.
State Law Claims
B.A. brings claims of battery, assault, negligence, and
“intentional tort” against Varney in Counts IV, V, VI, and IX.
Although B.A. includes no allegations as to MSD’s vicarious
In a civil case, an adverse inference may be drawn from a
party’s invocation of her Fifth Amendment right. Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976).
liability for Varney’s conduct in those counts, MSD presumes
that B.A. is asserting a theory of vicarious liability.
objection, B.A. states that MSD would be liable for Varney’s
actions under the doctrine of respondeat superior.
construes the complaint to assert claims of vicarious liability
and B.A. apparently intended that result, the court will also
presume that B.A. brings vicarious liability claims.
In addition, B.A. alleges three state law claims against
In Count VII, B.A. alleges that MSD was
negligent in its supervision, custody, care, and educat ion of
J.F., and in Count VIII, B.A. alleges that MSD was negligent in
hiring and retaining Varney as a teacher.
In Count XI, B.A.
alleges that MSD’s conduct violated J.F.’s rights under the New
Hampshire Constitution, Part I, Article 2.
MSD seeks summary judgment on all of the state law claims.
MSD asserts that the state law claims, except the constitutional
claim in Count XI, are barred by municipal immunity under RSA
507-B:5 and that Counts VII and VIII are also barred by
discretionary function immunity.
MSD also challenges the
“intentional tort” claim on the merits.
As to the
constitutional claim in Count XI, MSD contends that B.A. fails
to state a cause of action for violation of the New Hampshire
B.A. objects to summary judgment on her state law
B.A. acknowledges that if RSA 507-B:5 were applied to her
negligence claims in Counts VI, VII, and VIII, those claims
She argues, however, that RSA-B:5 and :2, as
applied to her claims, violate the New Hampshire Constitution’s
guarantees of the right to a remedy and equal protection .
also argues that statutory immunity does not apply to her
intentional tort claims in Counts IV, V, and IX.
Under New Hampshire law, governmental units are immune from
liability for personal injury except as otherwise provided by
A school district is a governmental unit
for purposes of RSA 507-B:5.
RSA 507-B:1, I.
unit is not immune, however, for personal injury “arising out of
ownership, occupation, maintenance or operation of all motor
vehicles, and all premises.”
provided by RSA 507-B:2 is limited to the operation of the
governmental unit’s physical premises.
Lamb v. Shaker Reg’l
School Dist., 168 N.H. 47, 51 (2015).
B.A. argues that the immunity afforded MSD in this case
violates the New Hampshire Constitution.
argues that RSA 507-B:5 deprives J.F. of a remedy in violation
of Part I, Article 14 and deprives J.F. of equal protection in
violation of Articles 2 and 12.
MSD provided a response to
B.A.’s constitutional challenge in which it contends that the
New Hampshire Supreme Court has found that RSA 507-B:5 does not
deprive a plaintiff of a right to a remedy and that B.A. has not
raised a cognizable equal protection claim.
Right to a Remedy
The purpose of Article 14 “is to make civil remedies
available and to guard against arbitrary and discriminatory
infringements upon access to courts.”
N.H. 176, 180 (2014).
Huckins v. McSweeney, 166
The immunity provided by RSA 508-B:5 and
:2 does not deprive a plaintiff of the right to a remedy
protected by Article 14 when the plaintiff can bring a claim for
damages directly against the tortfeasor.
brought claims for damages on behalf of J.F. against Varney, she
has not shown that the immunity provided in RSA 508-B:5 and :2
violates the right to a remedy in her case.
B.A. contends that immunity under RSA 508-B:5 and :2
violates the right to equal protection.
In support, she
contends that the immunity provided to MSD causes her to be
deprived of a remedy while plaintiffs who are injured by private
actors are not so deprived.
As a result, B.A. argues, RSA 50827
B:5 and :2 are subject to intermediate level scrutiny and MSD
must show that the immunity provided serves an important
As the New Hampshire Supreme Court has explained, a claim
that a statute violates the right to a remedy and to equal
protection may be addressed in a single analysis.
Oak Point Assocs., P.A., 167 N.H. 459, 462 (2015).
The right to
equal protection under the New Hampshire Constitution is a
guarantee “that all persons similarly situated should be treated
Id. (internal quotation marks omitted).
classification treats similarly situated persons differently
with respect to an important substantive right, such as the
right to a remedy, the classification must meet the intermediate
scrutiny test, which requires a showing “that the challenged
legislation be substantially related to an important
Id. at 463 (internal quotation marks
The burden to show that that the challenged
legislation meets the intermediate scrutiny test “now rests with
the party seeking to uphold the statute.”
Because the New Hampshire Supreme Court has already held
that RSA 508-B:5 and :2 do not deprive a plaintiff of a remedy
as long as the plaintiff can bring a claim for damages against
the tortfeasor, which is the case here, no violation of an
important right has occurred.
B.A. does not allege that J.F.
belongs to a suspect classification.
In the absence of a
suspect classification or the violation of an important right,
the rational basis test applies to an equal protection
See Signs for Jesus v. Town of Pembroke, --- F.
Supp. 3d ---, 2017 WL 394493, at *11 (D.N.H. Jan. 27, 2017).
Under the rational basis test, “the party challenging the
statute bears the burden of showing that the statutory
classification does not bear a rational relationship to a
legitimate state interest.”
State v. Ploof, 162 N.H. 609, 627
B.A. argues that statutory immunity causes J.F. to be
treated differently than a child injured by a teacher at a
The New Hampshire Supreme Court has already
decided, however, that, because of the important governmental
interests involved when government entities are sued, statutory
immunity does not violate the equal protection guarantee , even
for some intentional torts.
Huckins, 166 N.H. at 182.
important governmental interests identified in Huckins amply
support the constitutionality of statutory immunity for
negligence actions under both the intermediate scrutiny and
rational basis tests.
B.A. has not carried her burden to show
that statutory immunity for public school districts does not
bear a rational relationship to the governmental interests
identified in Huckins.
Immunity for Intentional Torts
MSD contends that it is immune from liability for the
intentional torts that B.A. alleges in Counts IV, V, and IX.
B.A. objects, arguing that Varney did not have a reasonable
belief that her force feeding and other treatment of J.F. were
The immunity provided by RSA 507-B:5 covers intentional
torts by municipal employees as long as the employee acted
within the scope of his or her official duties and reasonably
believed that his or her intentional acts were lawful.
v. City of Concord, 168 N.H. 430, 443 (2015).
For the reasons discussed above in the context of B.A.’s
ADA and Rehabilitation Act claim, there is at least a factual
dispute as to whether Varney reasonably believed that her
treatment of J.F. was lawful.
Therefore, MSD has not shown that
it is entitled to summary judgment on B.A.’s claims of
intentional torts in Counts IV, V, and IX based on st atutory
Result of Application of Immunity
The immunity provided under RSA 508-B:5 and :2, as applied
in this case, does not violate the New Hampshire Constitution.
As a result, MSD is immune from liability for negligence as
alleged in Counts VI, VII, and VIII.
A factual dispute
precludes summary judgment based on statutory immunity as to the
intentional tort claims, Counts IV, IV, and IX.
MSD also contends that discretionary function immunity bars
B.A.’s negligence claims in Counts VII and VIII.
immunity provided by RSA 507-B:5 applies to those claims, it is
not necessary to consider whether they would also be barred by
discretionary function immunity.
Merits – “Intentional Tort” Claim – Count IX
MSD also moves for summary judgment on Count IX, which is
titled “Intentional Tort,” on the ground that it does not state
a cognizable theory of liability.
B.A. did not respond to the
challenge on the merits of Count IX.
In Count IX, B.A. alleges that Varney had a special
relationship with J.F. as his teacher and had a duty to use
reasonable care in his care and supervision in compliance with
the rules and regulations provided by the MSD, along with rights
secured by the New Hampshire Constitution, New Hampshire common
law, and various federal statutes.
B.A. further alleges that
Varney intentionally breached her myriad duties by her treatment
of J.F. in attempting to force feed him.
Such general references to the common law and unspecified
state and federal standards are not sufficient to show that B.A.
is entitled to relief.
See Fed. R. Civ. P. 8(a)(2).
addition, Count IX appears to repeat claims made in other
counts, which is unnecessarily repetitive and confusing.
Therefore, MSD is entitled to summary judgment on C ount IX.16
Constitutional Violation – Count XI
In Count XI, B.A. alleges that “[t]he conduct and action of
defendant MSD was done negligently, recklessly, intentionally
and/or with a deliberate indifference to the rights of the
plaintiff J.F. and/or was done unnecessarily and wantonly with
the purpose of causing harm and inflicting pain, emotionally and
otherwise physically abusing J.F. [which violated J.F.’s rights
to due process and equal protection] guaranteed under Part I,
Article 2 of the New Hampshire State [sic] Constitution.”
Compl. Doc. 11 at ¶ 66.
MSD moves for summary judgment on the
ground that no private right of action exists for damages under
In response, B.A. asks this court to create an
appropriate constitutional remedy because the immunity statutes
deprive her of a remedy against MSD.
The New Hampshire Supreme Court has held in similar
circumstances that no constitutional tort exists to redress
Count IX alleges that Varney committed an “intentional
tort,” so that MSD’s liability, if any, would be vicarious.
Varney did not move for summary judgment on Count IX. Becaus e
the claim does not state a cognizable cause of action against
Varney, hence obviating any vicarious liability of MSD, the
claim is dismissed as to Varney as well as to MSD.
violation of Article 2 when another remedy exists.
Eno, 139 N.H. 708, 721-22 (1995); see also Khater v. Sullivan,
160 N.H. 372, 379-80 (2010).
without a remedy.
As is explained above, J.F. is not
In addition, a new constitutional tort would
be incompatible with statutory immunity provided to governmental
See Rockhouse Mt. Prop. Owners Ass’n, Inc. v. Town of
Conway, 127 N.H. 593, 600 (1986).
Therefore, the court will not
recognize the new cause of action under the New Hampshire
Constitution that B.A. proposes.
See Ali v. Warden, N. N.H.
Corr. Facility, 2013 WL 3367098, at *4 (D.N.H. July 3, 2013).
For the foregoing reasons, MSD’s motion for summary
judgment (document no. 22) is granted as to Counts VI, VII,
VIII, IX, and XI.
Count IX is dismissed as to both MSD and
B.A.’s remaining claim in Count II is that MSD violated
J.F.’s substantive due process rights under the Fourteenth
Amendment by being deliberately indifferent to the need to train
and supervise Varney and the teacher’s aides in Varney’s
classroom to prevent the abuse of J.F. that occurred.
The motion for summary judgment is otherwise denied.
remaining claims against MSD are that part of Count II
identified above, Count III, Count IV, and Count V.
The plaintiff’s motion for certification (document no. 29)
Now that the defendants’ motions for summary judgment have
been resolved, the parties know what claims will remain in the
case for trial.
October 3, 2017.
Trial is scheduled for the period beginning on
Before the parties and the court spend the
considerable time and resources necessary to prepare for trial,
the parties are expected to use their best efforts to resolve
all or part of the remaining claims.
To that end, counsel shall carefully examine their claims
and defenses to evaluate their viability, the proof necessary to
support them, and how they will present those matters to a jury.
In their mediation statement filed on April 18, 2017, the
parties represented that they were discussing mediation to be
held at a later date.
If they have not already done so, the
court expects the parties to mediate before trial.
Counsel shall file a status report, on or before August 9,
2017, to inform the court as to whether mediation has occurred,
and if not, when it is scheduled to be held.
Joseph DiClerico, Jr.
United States District Judge
July 18, 2017
Erin J. M. Alarcon, Esq.
Mark S. Bodner, Esq.
Emile R. Bussiere, Jr., Esq.
Keith F. Diaz, Esq.
John P. Fagan, Esq.
Robert J. Meagher, Esq.
Michael B. O’Shaunessy, Esq.
James G. Walker, Esq.
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