UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
DAVID SMITH AND PAMELA SMITH, : INDIVIDUALLY AND AS PARENTS : AND NEXT FRIENDS OF JEREMY SMITH, : CIVIL ACTION NO. : 3:03-CV-1829 (WWE) Plaintiffs :
v. :
GUILFORD BOARD OF EDUCATION, : SANDRA M. WHELAN, IN HER OFFICIAL : CAPACITY AS A MEMBER OF THE : GUILFORD BOARD OF EDUCATION, : STEPHEN G. RIEBEN, IN HIS OFFICIAL : CAPACITY AS MEMBER OF THE GUILFORD : BOARD OF EDUCATION, WILLIAM L. : DWYER, IN HIS OFFICIAL CAPACITY AS : A MEMBER OF THE GUILFORD BOARD OF : EDUCATION, KEITH B. BISHOP, IN HIS : OFFICIAL CAPACITY AS A MEMBER OF : THE GUILFORD BOARD OF EDUCATION, : RICHARD J. BEATTY, IN HIS OFFICIAL : CAPACITY AS A MEMBER OF THE : GUILFORD BOARD OF EDUCATION, : WILLIAM BLOSS, IN HIS OFFICIAL : CAPACITY AS A MEMBER OF THE : GUILFORD BOARD OF EDUCATION, MARGOT: K. BURKLE, IN HER OFFICIAL CAPACITY: AS A MEMBER OF THE GUILFORD BOARD : OF EDUCATION, JAMES L. RALLS, IN : HIS OFFICIAL CAPACITY AS A MEMBER : OF THE GUILFORD BOARD OF EDUCATION,: KATHLEEN NOLAN, IN HER OFFICIAL : CAPACITY AS A MEMBER OF THE : GUILFORD BOARD OF EDUCATION, : BARBARA L. TRUEX, IN HER OFFICIAL : CAPACITY AS GUILFORD SUPERINTENDENT: OF SCHOOLS, PAMELA GARDNER, IN HER : OFFICIAL CAPACITY AS AN EMPLOYEE : OF THE GUILFORD BOARD OF EDUCATION,: TAMMY LIZOTTE, IN HER OFFICIAL : CAPACITY AS AN EMPLOYEE OF THE :
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GUILFORD BOARD OF EDUCATION, and : LILLIAN PRESTON, IN HER OFFICIAL : CAPACITY AS AN EMPLOYEE OF THE : GUILFORD BOARD OF EDUCATION, :
Defendants. : NOVEMBER 23, 2005
RULING ON DEFENDANTS’ MOTION TO DISMISS ON THE PLEADINGS
This is an action arising out of injuries and damages
allegedly suffered by one of the plaintiffs as a result of
purported bullying and harassment by the plaintiff’s classmates
during his freshman year of high school, specifically from
September 2001 through January 2002.
The plaintiffs filed a seven-count amended complaint,
alleging: (1) violations of 42 U.S.C. section 1983 as to all
defendants; (2) violations of 42 U.S.C. section 1985 as to all
defendants; (3) violations of 42 U.S.C. section 1986 as to all
defendants; (4) violations of the Rehabilitation Act, 42 U.S.C.
section 794, and the Americans with Disabilities Act, 42 U.S.C.
sections 12102, et seq. as to all defendants; (5) negligence
against all defendants for the breach of their duties to protect
students from intentional harm and to provide a safe school
environment; (6) negligence by Superintendent Truex, the Board
and the Board members for the breach of their duty to supervise
students and teachers; and (7) a cause of action for
reimbursement to plaintiffs David Smith and Pamela Smith for
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medical expenses for their child, plaintiff Jeremy Smith, for
injuries incurred. The defendants now move for judgment on the
pleadings in their favor on all claims against all defendants on
the ground that all claims are barred by the doctrine of
governmental immunity. In the alternative, the defendants move
for judgment on all claims on the ground that the plaintiffs have
failed to allege that they have exhausted their administrative
remedies. Additionally, the defendants move for judgment on the
First, Second, Third and Fourth claims on the ground that they
are legally insufficient to state a cause of action upon which
relief may be granted.
I. BACKGROUND
At all times relevant to this matter, plaintiff Jeremy Smith
(“Jeremy”) was enrolled as a student and attended Guilford High
School. He was a freshman during the 2001-2002 academic year.
The salient events allegedly occurred between September 2001 and
January 2002. During that time, plaintiffs allege, Jeremy was
approximately four feet, seven inches (4'7") in height and
weighed 75 pounds. Having been diagnosed with Attention Deficit
Hyperactivity Disorder (“ADHD”), Jeremy was considered an
individual with a disability, as defined in 29 U.S.C. section
705, and a qualified individual with a disability, as provided by
42 U.S.C. section 12131. Accordingly, Jeremy qualified for
special education services as an “other health impaired” student
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pursuant to Conn. Gen. Stat. Section 10-76a and Regs. Conn. State
Agencies section 19-76a-2. As a result of this classification, a
Planning and Placement Team (“PPT”) met to design and implement
an individualized educational program (“IEP”) as required under
both federal and state law.
The plaintiffs allege that from at least November 2001
through January 2002, students at Guilford High School
individually and in concert engaged in an ongoing course of
conduct that involved acts and offenses against Jeremy during
school hours and on school property. These acts included, but
were not limited to: (1) pushing and shoving; (2) blocking
Jeremy’s entrance into or out of classrooms, restraining and
imprisoning him therein; (3) placing Jeremy on students’
shoulders and physically treating him “like a baby;” (4) teasing,
harassing, bullying and tormenting Jeremy on a daily basis; (5)
forcing Jeremy into a backpack, zipping the pack, then parading
the backpack, with Jeremy visible, through the halls of the
school; (6) mocking Jeremy with sexually suggestive comments; (7)
on at least one occasion, picking him up against his will,
cradling and treating him as if he were a baby; (8) grabbing,
assaulting, restraining, imprisoning, and teasing him with
disparaging or threatening comments.
The plaintiffs allege that the defendants were aware of this
conduct and these events, that they failed to intervene in any
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way and condoned, permitted or acquiesced to the performance of
these acts. The plaintiffs assert that the defendants’ pattern
of conduct, customs, usages and practices effectively deprived
Jeremy of his constitutional rights of due process and equal
protection and his state right to a free and appropriate public
education. They also argue that the Superintendent and the Board
failed to train and supervise its employees properly in order to
prevent the occurrence of such acts or to rectify the employees’
lack of intervention of same.
As a result of the defendants’ conduct and their failure to
act, the plaintiffs claim, Jeremy suffered emotional and physical
injuries. He ultimately withdrew from Guilford High School and
attended high school in another town. The plaintiffs now claim
damages for the injuries suffered as a result of the defendants’
conduct and their failure to act. The plaintiffs also claim
reimbursement for medical costs associated with the care for
Jeremy’s injuries.
II. DISCUSSION
1. Standard of Review
After the pleadings are closed, a party may move for
judgment on the pleadings if no material facts remain at issue
and the parties’ dispute can be resolved on both the pleadings
and those facts of which the Court can take judicial notice.
Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate
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if, from the pleadings, the moving party is entitled to judgment
as a matter of law. Burns International Sec. Serv. v.
International Union United Plant Guard Workers of America (UPGWA)
and Its Local 537, 47 F.3d 14, 16 (2d Cir. 1995). In deciding a
Rule 12(c) motion, we apply the same standard as that applicable
to a motion to dismiss under Rule 12(b)(6).
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) should be
granted only if “it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
The function of a motion to dismiss “is merely to assess the
legal feasability of the complaint, not to assay the weight of
the evidence which might be offered in support thereof.” Geisler
v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). In considering
a motion to dismiss, a court must presume all factual allegations
of the complaint to be true and must draw any reasonable
inferences in favor of the non-moving party. Cruz v. Beto, 405
U.S. 319, 322 (1972).
With this strict standard in mind, however, judgment on the
pleadings is appropriate where it is clear that there is no legal
sufficiency to the plaintiffs’ claims.
2. Governmental Immunity
The defendants move to dismiss all claims on the ground that
they are government officials and, therefore, are immune from
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suit pursuant to the doctrine of governmental immunity. The
plaintiffs argue that dismissal at this stage of the proceedings
is inappropriate because factual questions regarding the question
of immunity remain that cannot be resolved on the pleadings. The
Court agrees with the defendants and finds there are no factual
questions that preclude the defendants’ governmental immunity.
“Individual public officials are entitled to qualified
immunity from claims for monetary damages if the statutory right
infringed was not clearly established at the time of the
violation or if it was objectively reasonable for officials to
believe their acts did not infringe upon those rights.” Taylor
v. Vermont Dept. of Education, 313 F.3d 768, 793 (2d Cir. 2003).
“In determining whether a right has been clearly established, we
consider (1) whether the right in question was defined with
reasonable specificity; (2) whether the decisional law of the
Supreme Court and the applicable circuit court supported the
existence of the right in question; and (3) whether under
preexisting law a reasonable defendant would have understood that
his or her acts were unlawful.” Jermosen v. Smith, 945 F.2d 547,
550 (2d Cir. 1991).
The plaintiff must present allegations that, if true, could
support their claims of constitutional violations. “The initial
question in the qualified-immunity inquiry should be whether the
complaint sufficiently alleges the violation of a federal right,
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for a necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is ‘clearly
established’ at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of
constitutional right at all.” X-MEN Security, Inc. v. Pataki,
196 F.3d 56, 66 (2d Cir. 1999). If a violation of a
constitutional right is not established at this stage of the
inquiry, the defendants’ right to qualified immunity remains
intact. “The issue of whether the plaintiff has asserted a
violation of a constitutional right at all is a purely legal
question. If the complaint does not allege a cognizable federal
claim, the defendant is entitled to have his qualified immunity
motion granted promptly as a matter of law.” X-MEN, 196 F.3d at
66.
Here, the plaintiffs claim that Jeremy’s rights, privileges
and immunities under the fourteenth amendment to the United
States Constitution, 42 U.S.C. sections 1983, 1985 and 1986, the
Rehabilitation Act (42 U.S.C. section 794) and the Americans with
Disabilities Act (42 U.S.C. sections 12101, et seq.) were
violated by the defendants’ acts or omissions regarding the
rampant bullying and other acts and offenses he suffered while a
student at Guilford High School from at least November 2001
through January 2002. They assert that the defendants knew or
should have known that both their actions and inaction were
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likely to result in these violations of his federal rights, to
wit: his rights to due process and to equal protection under the
fourteenth amendment; his right to a free, safe and appropriate
public education, under the color of federal law, in violation of
42 U.S.C. section 1983; and his right to be free from
discrimination on the basis of a disability, pursuant to the
Rehabilitation Act and the Americans with Disabilities Act. The
plaintiffs claim that these violations also fall under the
constitutional rubrics of 42 U.S.C. section 1985 and 1986.
3. 42 U.S.C. section 1983 claims
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. section 1983.
The plaintiffs claim that as a result of the defendants’
conduct, Jeremy suffered the violation of his rights to due
process and equal protection. The plaintiffs do not elucidate
whether Jeremy suffered a loss of his rights to procedural due
process or substantive due process; however, what is significant
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at this stage is the deprivation of due process in any
permutation.
Due process claims may take one of two forms: procedural due process or substantive due process. Procedural due process claims concern the adequacy of the procedures provided by the governmental body for the protection of liberty or property rights of an individual. Substantive due process claims concern limitations on governmental conduct toward an individual regardless of the procedural protections. Plaintiff does not specify whether she is alleging a denial of her substantive or procedural due process rights, or both. However, to establish a violation of either substantive or procedural due process, plaintiff must initially show that she was deprived of a property or liberty interest. Thus, our threshold inquiry is whether plaintiff had a constitutionally protected property or liberty interest. If so, we will then consider whether there was a deprivation of that interest.
Gordon v. Nicoletti, 84 F.Supp.2d 304, 308-309 (D.Conn. 2000).
Here, the plaintiffs argue that Jeremy was deprived of his
constitutional right to a free appropriate public education
(“FAPE”). They claim that the constant harassment and ill
treatment precluded him from receiving his FAPE. Pursuant to the
process articulated in X-MEN Security, Inc. v. Pataki, 196 F.3d
56, 66 (2d Cir. 1999), supra, and Gordon v. Nicoletti, the Court
first considers whether the right to a FAPE is a constitutionally
protected property interest.
The Supreme Court has repeatedly held that the right to an
education is neither explicitly nor implicitly guaranteed in the
Constitution, and as such, cannot be considered "fundamental."
See San Antonio Independent School District v. Rodriguez, 411
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U.S. 1, 35-37, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (rejecting
claim that education is a fundamental right, thereby triggering
strict scrutiny review under the Equal Protection Clause); Dunbar
v. Hamden Bd. Of Educ., 267 F.Supp.2d 178, 181 (D.Conn.2003)
(noting that education is not among the rights afforded explicit
protection under our federal Constitution).
Furthermore, even if the right to a FAPE was considered
constitutional or fundamental, it is evident that Jeremy did not,
in fact, experience a denial of this right. While the plaintiffs
claim that Jeremy was “forced to withdraw from Guilford High
School” and, therefore, was “deprived of the ability to enjoy the
friendships he established with students in Guilford and to
continue the activities he had enjoyed while in Guilford,” they
do not argue that he was ever denied an appropriate public
education. He voluntarily withdrew from Guilford High School and
there is no claim that he did not receive a free and appropriate
public education in his subsequent placement. A FAPE only
requires that the state provide an “appropriate” education; it
does not require that it be an “optimal” education. “IEP’s
[Individualized Education Program, designed in furtherance of the
FAPE] are subject to numerous procedural and substantive
requirements, but they are not required to furnish every special
service necessary to maximize each handicapped child’s potential.
Rather, the IDEA requires that IEPs provide a basic floor of
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opportunity, consisting of services that are individually
designed to provide educational benefits to a child with a
disability.” Grim v. Rhinebeck Central School District, 346 F.3d
377, 379 (2d Cir. 2003). Jeremy was not “placed” in the other
school pursuant to an IEP; instead, he voluntarily chose to do
so. Significantly, the plaintiffs make no claim that Jeremy’s
IEP was lacking in any way; the absence of a complaint that
Jeremy’s placement in another school continued to deprive him of
a FAPE precludes the Court from a finding of said deprivation.
Accordingly, there is not a denial of any constitutionally
guaranteed property right and, therefore, Jeremy has not suffered
a violation of either his substantive or procedural due process
rights.
Assuming, arguendo, that the defendants had violated
Jeremy’s rights, which they did not, placement in another school
system would obviate the complaint. “It has long been held that
an unauthorized intentional deprivation of property by a state
employee does not constitute a violation of due process if a
meaningful post-deprivation remedy for the loss is available.”
Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d
393 (1984).
4. 42 U.S.C. section 1985, ADA and Rehabilitation Act claims
The plaintiffs additionally allege that the defendants
conspired to deprive Jeremy of his civil rights in violation of
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42 U.S.C. § 1985. To establish a cause of action under 42 U.S.C.
section 1985 for conspiracy to violate civil rights, "a plaintiff
must demonstrate 'some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators'
action.’" New York State National Organization for Women v.
Terry, 886 F.2d 1339, 1358 (2d Cir.1989). Section 1985 provides,
in relevant part:
If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985(3).
“To prevail on a § 1985(3) claim, a plaintiff must prove
that defendants (1) engaged in a conspiracy; (2) for the purpose
of depriving, either directly or indirectly, any person or class
of persons the equal protection of the laws, or the equal
privileges and immunities under the laws; (3) acted in
furtherance of the conspiracy; and (4) deprived such person or
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class of persons the exercise of any right or privilege of a
citizen of the United States.” New York State Nat. Organization
for Women v. Terry, 886 F.2d at 1358.
The plaintiffs claim that the defendants effectively
discriminated against him because of his disability, thereby
depriving him of equal protection. The Court disagrees.
It is true, pursuant to the facts as presented in the
complaint, that Jeremy was designated, for the purpose of access
to special education services as delineated by the guidelines
promulgated by the Americans with Disabilities Act (“ADA”), as a
student with a “disability.” The plaintiffs argue, however, that
it is this designation that raises their claims to violations of
federal rights as articulated in the ADA and the Rehabilitation
Act.1
Under the ADA, a plaintiff may establish that he has a
disability by demonstrating that he: “(1) has a physical or
mental impairment that substantially limits his major life
activities; (2) has a record of such an impairment; or (3) is
regarded as having such an impairment.” Dean v. Westchester
County P.R.C., 309 F.Supp.2d 587, 593 (S.D.N.Y. 2004). In order
1 The Second Circuit applies the same analysis to claims under the ADA as it does to claims that fall under the Rehabilitation Act. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). See also Colwell v. Suffolk County Police Dept., 158 F.3d 635, 641 (2d Cir. 1998) (“We also construe the ADA to be consistent with the regulations issued to implement the Rehabilitation Act.”).
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to establish the first element (i.e., whether one has a physical
or mental impairment that substantially limits one or more of the
major life activities of an individual), there is a three-step
inquiry: “(1) determine whether the plaintiff suffered from a
physical or mental impairment; (2) identify the life activity
upon which the plaintiff relied and determine whether it
constitutes a major life activity under the ADA; and (3)
determine whether the plaintiff’s impairment substantially
limited a major life activity identified in step 2.” Colwell v.
Suffolk County Police Dept., 158 F.3d at 641.
Although the plaintiffs claim that Jeremy’s condition
satisfies each element of both tests, it is evident from the
record that the disability from which Jeremy suffers and for
which he is designated as “disabled” is distinct from the
“impairment” to which the ridicule and harassment was directed
and that there is no “major life activity” that is or has been
substantially limited as a result of the designated impairment.
Jeremy was diagnosed as having Attention Deficit Hyperactivity
Disorder (“ADHD”); this condition entitled him to the rights and
provisions of special education services and accommodations
guaranteed under the ADA. The plaintiffs do not attest that
Jeremy was treated in the manner alleged as a result of his ADHD
and they also fail to cite a major life activity that was limited
by virtue of same. Instead, the plaintiffs attest that Jeremy’s
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classmates treated him with such hostility as a result of a
completely unrelated condition: his small size and low weight.
These factors have no correlation – and the plaintiffs claim none
– to the ADHD with which he was diagnosed and by virtue of which
he qualified as an “individual with an impairment” for the
purposes of the ADA and the Rehabilitation Act.
Furthermore, even if the plaintiffs did claim that Jeremy’s
stature is a “disability” for the purposes of the ADA and the
Rehabilitation Act, their assertion would be groundless. “It is
important to distinguish between conditions that are impairments
and physical, psychological, environmental, cultural and economic
characteristics that are not impairments. The definition of the
term ‘impairment’ does not include physical characteristics such
as eye color, hair color, left-handedness, or height, weight or
muscle tone that are within ‘normal’ range and are not the result
of a physiological disorder.” Francis v. City of Meriden, 129
F.3d 281, 284 (2d Cir. 1997).
5. 42 U.S.C. section 1986 claim
The plaintiffs’ final constitutional claim is that the
defendants violated their rights as provided by 42 U.S.C. section
1986. Section 1986 provides that
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to
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the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented ..... But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.
42 U.S.C. section 1986.
Since it has already been established that there was no
constitutional violation, the plaintiffs’ claims under section
1986 also fail. Quite simply, there was no constitutional
violation, there was no conspiracy to commit a constitutional
violation and, therefore, there was no amount of prevention the
defendants could have employed. While it is tragic that Jeremy
Smith suffered repugnant treatment by his peers, such treatment
does not rise to the level of the violations of constitutional
rights.
Furthermore, the plaintiffs’ claims under 1986 are time
barred. As the statute provides, there is a one year statute of
limitations for an action brought pursuant to 1986 (“No action
under the provisions of this section shall be sustained which is
not commenced within one year after the cause of action has
accrued.”). The plaintiffs claim that the acts in question took
place no later than January 2002. This action was not commenced
until October 2003. More than a year had passed before the
plaintiffs filed their complaint. Thus, their claims under 1986
are barred by the applicable one year statute of limitations.
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III. CONCLUSION
For the foregoing reasons, the Court grants judgment on the
pleadings [Doc. #39] in favor of the defendants.
The Clerk is instructed to close this case.
SO ORDERED this __29th___ of November, 2005, at Bridgeport,
Connecticut.
________/s/________________________ Warren W. Eginton Senior United States District Judge
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