UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
JANE DOE, parent and next of friend of MARY DOE, a minor in and for her own behalf and in their own right, Plaintiffs,
V.
CITY OF PAWTUCKET, RHODE PAWTUCKET SCHOOL DEPARTMENT, in her official and individual capacity§ PAWTUCKET SCHOOL COMMITTEE and Pawtucket School Coininittee l\'leinbers! Gerald Charbonneau, Chair, Michael Araujo, Joanne Bonollo, Erin Dube, John J. Crowley, JoSeph Knight, and Elena Vasquez, in their official capacity; LINDA GIFFORD, SCHOOL PRINCIPAL OF ACADEMY, in her official and in his official and individual capacity; 'i‘HOMAS J. ANDERSON, in his official and individual capacity§ KAREN DUBE, in her official and individual capacity.' ELIZABETH VELIS, in her official and individual capacity§ LEE RABBIT, in her official and individual Capacity; KERRI DAY, in her official and individual Capacity; SUSAN HALL, in hei1 official and individual capacitij MICHAELA FRATTARELLI, in her official and SWICZEWICZ, in his official and individual capacity§ and SHAUN W. STROBEL, PAWTUCKET CITY
C.A. No. 17'365'JJM'LDA
TREASURER; and unknown Richard ) and Rita Roes, ) Defendants. )
MEMORANDUM AND ORDER JOHN J. MCCONNELL, JR., United Statcs District Judge.
Defendants have jointly moved to dismiss Plaintiffs’ Third Alnendod Coniplaint. ECF No. 73. For reasons set forth beloW, the Court GRANTS Defendants’ niotion. l. BACKGROUND
Plaintiffs, Mary Doe (“Mary”), a minor, and Jane Doe, her mother and next of friend, brought this action alleging various federal and state law claims against the City of Pawtucket, the PaWtucl<et School Colnniittee and its ineinbers, Superintendent of School, Patti DiCenso, Principal of the Pavvtucl§et Learning Acadeniy, Linda Gifford, and additional teachers and members of the Pa\vtucket Learning Acadeiny (“PLA”) staff, regarding alleged incidents of sexual assault. At all relevant tilnes, l\/Iary Was a student at the PLA, a federally funded school in the City of PaWtucket for students With disabilities and students treated as disabled students ECF No. 57 at 1|1[ 17, 24. The Colnplaint involves five allegations of sexual assault!
Allegation 13 Mary alleges that she Was raped, assaulted, and molested for two years at the PLA. ]d. at 1[ 26. The allegations include that during school hours and other occasions, “at or on the Way to and from gym classes, during class hours,n unnamed students Would “grab at,” “butt slap,” and “grope” Mary, and “mal<e sexual remarks and suggestions to her,” while Defendants “stood by.” I(I. at il 27.
Allegation 23 l\flary alleges that in April 2016, a “male gym student got behind [l\/.[ary], and simulated sexual fornication by rubbing his genitalia area against ll\dai‘y’sl clothed anal area, in front of the gym teacher and class.” [d. at 1[ 30. rl`he Coinplaint also includes that “lalt that time, [the gym teacherl and/or the school contacted the police.” [d.
Allegation 33 Mary alleges that in May 2016, a student raped her in the school bathroom. Ir]. at 1[ 35. The Complaint continues that Principal Gifford asked l\/[ary if she “had sex With lthe studentl?” and “took no further steps” \vhen Mary answered yes. fd. at il 38.
Allegation 45 Mary alleges that in June 2016, a student at the school, lvander DeBurgo, sexually assaulted her in the school \vhile she was Waiting for her father to pick her up. fd. at 1|1| 50, 57.‘ The Complaint includes that Principal Gifford and other teachers directed Mr. DeBurgo to leave the building [d. at 111{ 43, 50. After being directed to leave, l\’ir. DeBurgo unlawfully re“entered the building [d. at ‘|l 53. l\’lr. DeBurgo entered Defendant Thomas Anderson’s classroom and he told Mr. DeBurgo to leave. ]d. at 11 4'7. Mary left Mr. Anderson’s classroom and Was found in the bathroom With Mr. DeBurgo by l\/Irs. l\'chaughlin. ]d. at il 11 5()`, 61'65.
1 Mr. DeBurgo Was convicted on May 3, 2017 of first'degree child niolestation. ECF No. 57 at 1| 74.
The Complaint alleges that all Defendants knew of Mr. DeBurgo’s propensity for sexual assault and that Superintendent Patti DiCenso conspired with Assistant Superintcndent Lee Rabbit and Dean Christopher Swiczewicz to keep the matter
Allegation 51 lVlary alleges that in April 2017, a faculty member, David l\'lorton, “smacked and grabbed her butt...” [d. at ‘i[ 78. The Complaint also alleges that before the incident, Defendants DiCenso, Rabbit, Gifford, Swiczewicz, and Anderson “had, for some time, known of’ incidents where l\/lr. l\'Iorton touched and tapped the inner thigh of three other students Id.
To survive a motion to dismiss for failure to state a claim under Federal Rulc of Civil Proceduro lZ(b)(G), Mary must present facts that make her claim plausible on its face. See Be]]/lt]. C'Olp. V. Tr#VOHIblI/, 550 U.S. 544, 570 (2007). rl‘o determine plausibility, the court must first review the complaint and separate conclusory legal allegations from allegations of fact. See RO(/M;g'uez']i’.eves V. ]lJO]Iha'Rod)'l;guez, 711 F.3d 49, 53 (1st Cir. 2013). Next, the court must consider whether the remaining factual allegations give rise to a plausible claim of relief See 1'([.
To state a plausible claim, a complaint need not detail factual allegations but must recite facts sufficient at least to “raise a right to relief above the speculative level...” TWO!))I)]y, 550 U.S. at 555. A pleading that offers “labels and conclusions” or “a formulative recitation of the elements of a cause of action” will not suffice AS])cz'Oft
V. fqba], 556 U.S. 662, 678 (2009). Nor does a complaint suffice if it tenders “naked assertionlsl devoid of further factual enhancement.” Id. (quoting TWQm/)]y, 550 U.S. at 557); See also Soto'Torz'es V. ]d'atjce]]l', 654 F.2d 153, 159 (1st Cir. 2011) (holding that combined allegations, taken as true, “must state a plausible, not a merely conceivable, case for relief.”). lll. DISCUSSION
A. The Complaint Fails to State Any Substantive Allegations Against Defendants Elizabeth Velis, Kerri Day, Susan Hall, and Michaela Frattarelli. l\/lary does not make any substantive allegations against Defendants Velis, Day, Hall, and Frattarelli.2 A complaint must have factual content that allows the Court to draw reasonable inferences that a specific Defendant is liable for the alleged misconduct See [qba], 556 U.S. at 678. '1`0 draw an inference, the complaint must allege facts linking each Defendant to the grounds on which that Defendant is potentially liable See jd.
Dcfendants Velis, Day, Hall, and Frattarelli are listed only in paragraph 12 of the Colnplaint as PLA personnel and in paragraph 22 of the Complaint as teachers Beyond the cursory references, there are no substantive allegations or facts linking any of these Defendants to the grounds on which they are potentially liable. F or these reasons, the claims against these Defendants are dismissedl
2 Plaintiffs fail to address this argument in their opposition to Defendants’ Motion to Dismiss.
B. The Title IX Claim (Count I) Fails ln Count l, l\/lary sues Defendants under Title lX of the Education Amendments of 1972 (“Title IX”). See 20 U.S.C. §§ 1681, et Seq. l\’lary alleges that the Defendant School District violated her rights when it “continued to subject [l\/laryl...to sexual harassment based on her sex” and “failed to promptly and appropriately respond to the sexual harassment and assaults...” ECF No. 57 at jlll 81, 82. Title lX provides that “[nlo person in the United States shall, on the basis of sex, be excluded from participation in, l)e 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).
1. The Title IX Claim Fails Against All lndividual Defendants.
Courts have limited claims under Title IX to suits against grant recipients and held that Title IX does not authorize “suit against school officials, teachers, and other individuals.” Er'a.zjez' V. Fajz'}la Ven Sc]i. Comm., 276 F.3d 52, 65 (1st Cir. 2002). Here, no individually named defendant is a recipient of federal fundingl Accordingly, Title lX claims against all individual Defendants are dismissed
2. The Title IX Claim Fails to Set Forth Facts to Establish the Required Elements of Notice, Severity, and Deliberate lndifference.
A recipient of federal funding can be liable under Title lX if “its deliberate indifference subjects its students to harassment.” Doe V. Bror-W) Unjvel'sjty, 896 F.3d 127, 130 (1st Cir. 2018) (citing 133ij V. Mom'c)e Uty. Bd. ofE(/uc,, 526 U.S. 629, 644 (1999)). To establish such a “deliberate indifference” claim, l\/lary must set forth sufficient plausible facts that would show that (l) she was subject to “severe, pervasive, and objectively offensive” sexual harassment,' (2) the harassment caused her to be deprived of educational opportunities or benefits; (3) the Defendants were aware of this harassment in (4) its programs and activities and (5) its response, or lack thereof, to the harassment was “clearly unreasonable.” Pol'to v. Tc);-W) of T€W!rsbmy, 483 red 67, 72-73 (1st cna 2007). a. Allegation 1 l\/lary alleges that she was raped, assaulted, and molested for two years at the PLA and that all Defendants “knew or should have known” about it. ECF No. 57 at ‘1[ 26. The allegations read as generalized assertions that “ldl uring school hours and [diversel occasions co'student(s) would grab at her buttocks, harass her, threaten her, sexually discriminate against her, and make sexual remarks and suggestions to her...” _Td. at 1[ 27. Mary also alleges that she was subjected to several sexual incidentsl at or on the way to and from gym classes, during class hours, where she was “butt slapped” and/or groped by male and female students fd. at il 28.
The allegations here however do not set forth plausible facts of knowledge by PLA officials l\/Iary does not allege that she reported the acts or that any school official saw them. lnstead, she alleges that the “defendant school and litsl personnelH
J} were “armed with knowledge of such sexual assaults... [d. These generalized assertions are insufficient Iqba], 556 U.S. at 678 (“naked assertionlsl devoid of further enhancement” are not sufficient); see Po][al'd V. G'eoi;gefol-Vn Sc]). Djsl.”., 132
F. Supp. 3d 208, 231 (D. l\/lass. 2015) (holding that undetailed and conclusory assertions that defendant had knowledge were insufficient to establish notice)§ See also Doe V. Bradsh.aw, 2013 WL 5236110, at “"11 (D. l\flass. Sept. 16, 2013) (dismissing portion of a Title lX claim based on knowledge of harassment because plaintiffs offered only conclusory allegations).
The Complaint also alleges that “Defendants superintendent and school principal had or should have had knowledge of this sexual assault, as well as other sexual assaults referenced herein.” fd. at ll 31. Courts have rejected constructive knowledge and held that Title IX recipients must have actual knowledge of the harassment See Davjs, 526 U.S. at 650; G’ebser V. Lago Vi'sta hidependent Sc})oo] Djs.¢., 524 U.s. 274, 289 (1993).
Having failed to plead any plausible facts of knowledge on the part of the school officials, l\’lary necessarily did not set forth any fact to establish “deliberate indifference” by any school official in response to the alleged harassmentl b. Allegation 2
Mary also alleges that in or about April 2016, in physical education class, a male student “got behind ll\/laryl, and simulated sexual fornication by rubbing his genitalia area against [l\/Iary’sl clothed anal area, in front of the gym teacher and class.” ECF No. 57 at ll 30. W hile the allegations include that the “gym teacher and the Defendant superintendent and principal, knowing of the incident, failed to take any action to comport with Title lX and/or state law and/or City Policy for a safe school and protection of ll\/laryl,” l\flary admits that “she and/or the school contacted the police .” [d.
Mary does not show how the Defendants’ response was deliberately indifferent By admitting that the incident was reported to the police, the allegation suggests the very opposite Sce Da VJ`S, 526 U.S. at 648 (holding that funding recipients in the Title IX context are deliberately indifferent to acts of stuclent~on'student harassment only where the recipient’s response to the harassment is clearly unreasonable). Mary has failed to allege with plausible facts that the response, or lack thereof, to the harassment was “clearly unreasonable.” Po)'to, 488 F.3d at 7 2'7 3. c. Allegation 3
Mary alleges that in or around l\’lay 2016, a PLA student raped her in the school bathroom. [d. at ll 35. The Complaint asserts that the day after the alleged incident, Principal Gifford approached Mary and asked her “l heard you had sex with lthe studentl?`l fd. at ll 38. Mary also claims that she answered “Yes,” and Principal Gifford took no further stepsl Id.
Plaintiffs themselves contradict this allegation of knowledge on the part of Principal Gifford. The medical report submitted by the Plaintiffs (ECF No. 80, Plaintiffs’ Ex. B3 at 10) and the police report submitted by Plaintiffs (Plaintiffs’ Ex. Bl) both show Mary denying that anything sexual had taken place between her and the student, including to Principal Gifford.3 Despite the alleged interaction between
3 Plaintiffs offered the documents to bolster their argument against Defendants’ motion to dismiss See COm]ej/' v. ’j’OWN ofRou/']ev, 296 F. Supp, 3d 327, 331 n.2 (D. l\flass. 2017) (noting materials offered in support or opposition to a 12(b)(6) motion to dismiss may be considered without converting the motion to one for summary judgment) (citing Wattez'son v. Page, 987 F.2d 1, 3'4 (1st Cir. 1993)). hilary and Principal Gifford, the facts of limited disclosure fail to constitute sufficient plausible facts to make the Committee responsible for a Title IX violation d. Allegation 4
Mary alleges that on June 7 , 2016, hli'. DeBurgo sexually assaulted her in the school. l\/Iary does not set forth facts that if proven would show that the Committee was deliberately indifferent to it so that its response was r‘clearly unreasonable.” See Poi'to, 488 F.Bd at 72'73. The Complaint alleges that l\/lrs. l\fchaughlin, the school secretary, found Mary in the bathroom with l\/lr. DeBurgo after learning from l\flr. Anderson that he thought l\”lary was with l\flrs. l\’chaughlin. ECF No. 57 at jlj[ 41, 61'66. l\llary does not allege that she reported what happened when she was found, or that there were any visible signs of what had occurred. No plausible allegations support liability by any school department personnel for this awful action by a co~ studentl l\/loreover, the Complaint admits that the day after this incident, “the Pawtucket Police Department, in accordance with City and Scheol policy, interviewed the minor plaintiff...” ECF No. 57 at ll 7 3. The Committee’s actions in discovering and reporting the matter to criminal investigators runs counter to the claim of deliberate indifference See Soper V. Hol)en, 195 F.3d 845, 854 (6th Cir. 1999)
(contacting authorities negates allegation of deliberate indifference). e. Allegation 5 l\flary also alleges that in April 2017, a faculty member “smacked and grabbed her butt,” and that Defendants knew about it.“1 ECF No. 57 at ll 78. The Complaint does not set forth facts showing that the Committee was deliberately indifferent to her 'l‘itle IX rights There are no allegations, for example, that school officials did not act against the teacher or did not end the employment relationship. lnstead, l\flary admits that l\'lr. l\/lorton was prosecuted for these actionsl ECF No. 57 at ll 78((0.
C. The Title VI Claim (Count Il) Fails l\’lary alleges that Defendants violated 'l`itle VI of the Civil Rights Act of 1964. 'l‘itle V l provides that “lnlo person...shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d Fii'st, no individual Defendant can be liable because 'l`itle Vl does not provide for individual liability. See Po]]ard, 132 F. Supp. 3d at 229'30; see also W]Ji'tlfr'e]d V. Noti'e Dame jl{jdd]e Sc])., 412 Fed. Appx. 517, 521 (3d Cir. 2011)§ Pi’jce che/. Pl'l'ce v. La. Dep’t efE'(/uc., 329 Fed. Appx. 559, 561 (5th Cir. 2009); Bzzc])azian v. thy ofBo./z'var; 99 F,3d 1352, 1356 (6th Cir. 1996); S})otz V. Cijy ofP]antatjon, 344 F.3d 1161, 1171 (11th Cir. 2003). Therefore, the Court dismisses the individuals as defendants in Count Il.
“ The Title lX Count appears premised only on sexual harassment perpetrated by other students, but the Court reads the Complaint generously. ECF No. 57 at ll Sl.
Second, l\/lary does not allege any facts showing intentional discrimination because of her race. See C'O]ie_rz V. Bz'own Unjv., 101 F.3d 155, 167 n.1 (1st Cir. 1996) ('l`itle Vl prohibits discrimination because of race, color, national origin). 'l`here are no allegations for example, that school officials treated similar allegations of a student of another race differently 'l`here is no mention of race in the Complaint. As a result, l\f[ary’s Title Vl claim fails
D. The Rehabilitation Act Claim (Ceunt lll) Fails l\/lary alleges that Defendants violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. First, no individual Defendant can be liable because they do not receive federal fund as individuals See flb/cdo'C'()]on v. Pucrto }?.jce, 812 F. Supp. 2d 110, 117 (D.P.R. 2011). The claim also fails because l\/lary has not alleged that she suffers from a physical or mental impairment that limits a major life activity. See Cook V. State 01"}?.[., Dep’t ofMenta] Hea]t}i, Hetardatjon, & Hosps., 10 F.3d 17, 23 flat Cir. 1993). Mary also does not set forth facts showing that she exhausted her administrative remedies See Wel)er V. Cl'anston Pub. Sc]). Colmn., 245 F. Supp. 2d 401, 409'10 (D.R.I. 2003) (holding that local education authorities are in a better position than a federal court to determine whether a student has been deprived of a free appropriate public education guaranteed by Section 504 regulations). The
Reliabilitation Act Claim therefore fails
E. The Constitutional Claims (Counts IV & V) Fail
The Court interprets Counts lV and V as allegations of Equal Pretection Clause and Due Process Clause violations under 42 U.S.C. § 1983. Count lV alleges a violation of the Equal Protection Clause and references sexual harassment and practices instituted or allowed that “constituteldl disparate treatment of female students and, more particularly of the minor plaintiff.” ECF No. 57 at ll 95, 99. l\/lary also alleges that all Defendants violated her right to substantive due process by “failing to protect her from physical, sexual, mental, and emotional abuse. . .” ]d. at ll 93. ln Count V, l\flary alleges an Equal Protection Clause claim that Defendants Superintendent DiCenso and Principal Gifford “should have known that their response to the aforesaid sexual assault allegations must comply with the 'l`itle lX’s promulgated implementing regulations[,l” and that the Committee failed to “supervise and train.” ]d. at § 109
Section 1983 “is not a source of substantive rights but a method for vindicating federal rights elsewhere conferred.” Bakei' v. Mc()o]]an, 443 U.S. 137, 145 n.3 (1979). To plead a viable claim under section 1983, the Complaint must allege both a violation of a right secured by the United States Constitution or laws, and that the alleged deprivation was committed by a person acting under color of state law. See Doe V. CO]um[)ja-Brazorja hidep. Sc]l. Djsé. by cfr through Bd. 01"7‘1‘£13£€€, 855 F.3d
681, 687 (5th Cir. 2017). Both Counts lV and V do not state a constitutional claiin.
1. The Equal Protection Clause Allegations Fail to State a Claim l\flary’s claims that Defendants violated her equal protection rights by inadequately protecting her from and responding to sexual harassment must be dismissed because she did not adequately allege that she Was afforded some different level of protection from harassment than her peers as a result of her membership in a protected class The Equal Protection Clause “prohibits a state from treating similarly situated persons differently because of their classification in a particular group.” ji/[u]ez'o¢€arrj]]e V. ROman¢Helvia’ndez, 790 F.3d 99, 105-106 (1st Cir.2015). To state a § 1983 claim based on violations of the Equal Protection Clause, a plaintiff “niust allege facts plausibly demonstrating that compared With others similarly situated,” the plaintiff Was “selectively treated...based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” ]d. at l()($. Typically, a plaintiff asserting an Equal Protectien Clause violation “must identify his putative cemparators” to make out a threshold case of disparate treatment See H¢'HTOH V. TOWH ofE‘allffjjzi, 660 F.3d 581, 537 (1st Cir. 2011); T]Jomas V. FbWH 01"" C}ie]msfol'd, No. 16'11689 (PBS), 2017 U.S. Dist. LEXIS 115590, at ""38'89 (D. Mass. July 25, 2017) (failure to identify any “similarly situated comparator forecloses equal protection claim”). Here, l\’lary does not allege any facts or address the argument in their opposition that any defendant treated the alleged harassment of her differently than any other student, let alone that the treatment was because of her membership in a protected class. The insufficient allegations require dismissal of the Equal Protection Cla use claims. 2. The Due Process Clause Allegations Fail to State A Claim l\/lary also alleges that all Defendants violated her right to substantive due process under the Fourteenth Amendnient to the United States Constitution. ECF No. 57 at ‘l| 93. 'l`he relevant inquiry here is whether Mary has pleaded plausible allegations of any conscience'shocking behavior by the Defendants that led to the alleged injury. The Court finds that the answer is no.
First, l\/lary’s allegations of sexual abuse by students do not state a due process clause claim because students are not state actors As for this claini, l\/lary emphasizes that the rape and sexual molestation of a “13 or 14'year'old student by older males” in “a school bathroom” is shocking “to the contemporary [consciencel...” ECF No. 78 at 63. But the Substantive Due Process Clause protects individuals from abuses of governmental power. Generally, it imposes no constitutional duty on the school to protect students from harm inflicted by other students See [)eS/)aney V. W)'Jmebagv C'()zmt_y Dep't OfSocja] Servs., 489 U.S. 189, 196 (1989); see also B)'z`(/g'es V. Scl"anton Sc!). Dl'st., 644 F. App’x 172 (3d Cir. 2016) (holding that no substantive due process claim for peer'on'peer harassment because no special relationship between student and district),' llfal’cum eXre]. C. V. V. Bd. ofEduc. ofBjooni'Carm]] Loca] Sc}i. Djst., 727 F. Supp. 2d 657, 673 (S.D. Ohio 2010) (failing to find a substantive due process claim based on a failure of school officials to prevent student on'student sexual harassment); ]l/[org‘an V, Bend'La Pj;ze Sc]i. Djst., No. CV'07'173' l\flary also rests her substantive due process claim on the allegations that l\/lr. l\loi'toii “smacked or grabbed ll\/Iary’sl butt” on one occasion. ECF No. 57 at ll 78. Under _/1/[0110]], a municipality cannot be liable foi1 its employees alleged constitutional violations under a theory of respondeat superior§ it can only be liable when the violation arises from, or is caused by, a governmental policy or custom. 486 U.S. at 090'95. Likewise, supervisory officials, such as the school officials here, cannot be held vicariously liable under § 1983. Supervisory liability exists only Where “(1) there is subordinate liability, and (2) the supervisor’s action or inaction was ‘affirmatively linked’ to the constitutional violation caused by the subordinate.” Aponte jl{atos v. TO]ec/o Davi`]a, 135 F.Bd 182, 192 (1st Cir. 1998). rl`he causal link between the supervisor action or inaction and the subordinate wrongdoing must be tightf “Deliberate indifference will be found only if it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Pjneda v. 7190111€}’, 533 F.8d 50, 54 (1st Cir. 2008). ln Ljpsett, the First Circuit held that summary judgment was inappropriate when the plaintiff told her supervisors she was being sexually harassed and neither supervisor “took any steps whatsoever to investigate those allegations.,.” and noted that the inaction “could be found to be gross negligence amounting to deliberate indifference.” Li])s'e.tt, 864 F.2d at 907. l.\/lary alleges that Defendants “had for some time, known of’ incidents in which l\'lr. Morton had “touched” or “tapped” the thigh of a student or students and made lascivious comments to another student, ECF No. 57 at ll 78.5 llowever, l\flary does not allege the tight causal link between any alleged knowledge on the part of the Defendants and the conduct of Mr. l\'lorton or that the response upon knowledge of the incident was deliberately indifferent lndeed, l\’lary admits that l\flr. l\/lorton was criminally prosecuted because of the alleged interaction with l\flary. ECF No. 57 at ll 78(d). The facts as pleaded do not support a substantive due process violation
3. The Failure to Train Claim (Count V) Fails to State A Claim l\/lary also alleges a violation of the Equal Protection Clause under § 1988 that Superintendent DiCenso and Principal Gifford “should have known that their responses to the aforesaid sexual assault allegations must comply with the Title lX’s promulgated implemented regulationsl,l” and that the Defendant School Committee violated her rights by failing to “supervise and train” in “mandated investigative requirements.” ECF No. 57 at 1|1| 108, 109. Only where a “municipality’s failure to train its employees in a relevant respect evidences a deliberate indifference to the rights of its inhabitants can such a shortcoming be properly thought of as a city policy or custom that is actionable under § 1983.” C'jty ofCantOn, O]n'o V. Harr!'$, 489 U.S.
5 Mary also alleges other incidents involving Mr. l\/lorton but she does not allege that any Defendant knew about these incidentsl ECF No. 57 at ll 78(iv)'(v). l\/lary has not pleaded a facially plausible constitutional claim. 'l`liere is therefore no foundation for her “failure to train” assertion. F. The Retaliation Clairns (Counts Vl and VII) Fail
1. The Retaliation Claim Against the Committee, Mrs. Gifford, Mrs. DiCenso Fails ln Count Vl, Mary alleges that the Committee, Principal Gifford, Superintendent DiCenso, and others retaliated against her for bringing this lawsuit by delaying her placement in a private school. ECF No. 57 at ll 112. The claim fails as l\/lary does not set forth facts showing material adverse action because of the alleged retaliation l\'lary does not plead enough facts to show that she suffered adverse action because of alleged retaliation The Complaint alleges that Defendants retaliated against Mary by delaying her placement in private school and not obtaining promptly proper transportation and books ECF No. 57 at 1[ 112. However, Mary began school at a private school of her choosing at the expense of the Committee one day after the school’s opening day in September 2017 and received academic books and inz_iterials at the Committee’s expense within days of enrollment ECF No. 73‘1 at 45. rl`he Colnplaint lacks the necessary facts showing that l\/lary suffered any injury because of any alleged retaliation
2. The Title IX Retaliation Claim Fails ln Count Vll, l\flary brings a retaliation claim against the City under rl`itle IX. 'l‘o successfully plead a Title IX retaliation claim, l\/lary must plead factual allegations showing that (1) she engaged in activity protected by 'l`itle lX,' (2) the alleged retaliator knew of the protected activity§ (3) the alleged retaliator undertook some action disadvantageous to her; and (4) a retaliatory motive played a substantial part in prompting the adverse action. Fiazjez', 276 F.3d at 67. Mary alleges that “defendant City, acting through its attorney retaliated against ll\/laryl by...reduc[ingl. ..the violation of the l\/linor Plaintiff’ s by second degree sexual assault by l\'lorton to a misdemeanor...” ECF No. 57 at 1[ 115. Yet the decision of whether to prosecute and what charges to file rests entirely in the prosecutor’s discretion Sec State V. 7}73011, 794 A.2d 465, 468 (R.l. 2002). 'l‘here is no Title IX retaliation claim against any of the named defendants
G. Supplemental Jurisdiction of State Law Claims
The Court keeps supplemental jurisdiction over l\/lary’s remaining state law claims because (l) the federal and state claims are “interconnected,” and (2) retaining jurisdiction supports the interests of fairness and judicial economy. See Roc]ie r/. Jo}m Hancock]l{ut. le‘"e fns C'o., 81 F.Bd 249, 256'57 (1st Cir. 1996) (citing 28 U.S.C.
1. The Right to A Safe School Claims (Counts Vlll and IX) Fail ln Counts V ll and IX, l\/Iary seeks money damages based on her assertion that Defendants did not provide a “safe school” under R.l. Gen. Laws § 16'2'17. ECF` No. 57 at 1|1[ 117'25. R.l. Gen. Laws § 16'2'17 sets forth the circumstances under which schools may suspend “disruptive” students who persistently create unsafe school conditions That said, no Rhode lsland court has found that the statute provides for a private cause of action against municipal or individual Defendants. The claims relying on R.l. Gen. Laws § 16'2'17 therefore fail. 2. The Negligence Claims (Counts X and XI) Fail l\/lary alleges two counts of negligence against Defendants. ECF No. 57 at ‘l|‘|l 126'37. ln Count X, she claims that all Defendants breached the “common law duty” to protect her from the tortious and/or criminal acts of third parties. ]cf. at 1111 127' 28. In Count Xl, she claims that all Defendants breached a “generalll duty to protect her from harm and/or injury and/or to protect her from the wrongful acts of others.” ]d. at 1111 133~34. 'l`he negligence claims do not state a claim upon which relief can be granted
First, the individual Defendants cannot be held liable to a third party for acts performed within the scope of their employment See Kennet V. ]l/L'u‘quls, 798 A.2d 416, 418 (R.l. 2002) (“lilt has long been settled that an agent acting on behalf of a disclosed principal is not personally liable to a third party for acts performed within the scope of his for herl authority”). Second, Principal Gifford, Superintendent DiCenso, and Assistant Superintendent Rabbit cannot be held liable under a theory of respondeat superior. See Gia;/ V. Wood, 64 A.2d 191, 194 (R.l. 1949) (finding that supervisors cannot be held liable, as a matter of law, for “acts of nonfeasance or for... ltheirl subordinates acts of misfeasance in which... ltheyl did not participate.”l. The Complaint does not set forth any facts alleging that these Defendants took part in, commanded, or ratified any alleged negligent act by others. For these reasons, l\/lary does not state a claim of negligence against any individual Defendant.
The negligence claims against the Committee fail because there is no factual support for the inference that any assault or behavior by another individual was reasonably foreseeable To prove a claim of negligence, the plaintiff must set forth plausible facts showing (1) a duty owed by a defendant to a plaintiff; (2) a breach of that duty§ (3) the proximate cause between the conduct and the resulting injury; and is a vital part of any negligence claim, central to the element of breach of duty and proximate cause. See Loj)ez v. D}ijersa] ]ns. C'o., 98 F. Supp. 3d 349, 357 (D.P.R. 2015),' See also Ge]c)so V. Kenny, 812 A.2d 814 (R.l. 2002) (factors determining whether a duty exists include foreseeability and likelihood of the injury). Courts have held that school committees are not responsible for misconduct of its students, when the misconduct is not foreseeable See Dam'e]s, 64 A.3d at 306 (reasoning that a plaintiff seeking to hold a school liable for injuries resulting from the acts of another must show that such acts could have been reasonably foreseen by the school)§ see also N angstown Sch. Comm, V. Justl}ie R., No. 13'6058, 2014 WL 8108411, at "‘15 (D.R.l. June 27, 2014) (noting that “a school has discretion in ensuring student safety, no duty absent foreseeable harm based on prior acts or other factors”). l\flary does not allege plausible facts that show that the alleged misconduct was foreseeable First, many allegations of alleged assaults omit the names of students, dates, and times of the incidents but lvlary alleges that Defendants had knowledge or should have known about them. ECF No. 57 at 1[1[ 28'31. As pleaded, there are no facts to set forth that any of the students had known assaultive propensities and the incidents were foreseeable Relatedly, l\/lary’s allegations about the l\flay 2016 assault in the bathroom do not show that the alleged assault was foreseeable ’l`hc Complaint lacks any facts to show that school officials were on notice to protect against a sexual assault by the student. l\/lary’s allegations about l\flr. DeBurgo also do not state a negligence claiin. First, there are no alleged facts supporting the claim that “school personnel” knew or “should have known” about an alleged prior rape by l\/lr. DeBurgo. ECF No. 57 at il 42. The Complaint also acknowledges that Mr. DeBurgo wrongfully re'entered the school premises after being directed to leave and thereby gained “unlawful entry.” [d. at 1[1[ 43, 47, 53, 57. The Complaint also lays out the actions of school officials about the incident including that Mrs. hchaligliliii searched for l\/lary, notified Principal Gifford of what she had seen, Superintendent DiCenso was briefed the same day, and Pawtucl<et Police Department interviewed Mary the next day. [d. at 1[1[ 58'65, 67, 68, 73. Accordingly, there are no facts to support a claim of negligence against Defendants about the l\/Ir. DeBurgo incident
3. The Rhode Island Civil Rights Act Claiin (Count Xll) Fails
In Count Xll, l\'lary asserts that Defendants violated her civil rights under Rhode lsland’s Civil Rights Act (“RlCR ”), R.l. Gen. Laws §§ 42~112'1 et Seq. RICRA protects against discrimination based on one’s “race, color, religion, sex, disability, age, or country of ancestral origin.” R.l. Gen. Laws § 42'112'1. The Court looks to federal law construing analogous civil rights statutes in assessing discrimination claims under RICRA. See Uo]man V. Fauc}lel', 128 F. Supp. 3d 487, 491 n.8 (D.R.l.
2015) (“'l`he lthode lsland Supreme Court analyzes lRlCRAl claims using substantive federal law from analogous causes of action.”). lfl\flary’s intent is for her RlCRA claim to mirror her federal discrimination allegations under Title lX, the Equal Protection Clause, rl`itle Vl, and Section 504,6 this claim fails for the reasons in the sections above. 4. The Rhode lsland Constitution Claims (Count Xlll) Fail ln Count `Xlll, l\’lary alleges a “lvliolation of equal protection to equal access to an educational environment free from harassment and . . . discrimination as guaranteed by the Rliode lsland Constitution." ECF No. 57 at 39. l\laii‘jf seeks remedy under the Rliode lsland Constitution, Article l, Sections 2 and 5. Id. at 1[ 142 'l`hc claim fails. l\/lary’s state constitutional claims to equal protection and due process under Article 1, Section 2 of the Rhode lsland Constitution fail for the same reasons as their federal counterparts See R.I. Deposjtol's Econ. Pret. C'Orp. v. Brown, 659 A.2d 95, 100 (R.l. 1995) quual protection standards of lthode leland Constitution coterminous with federal counterpart)§ Pe]]and v. Rfiode Is]and, 317 F. Supp. 2d 86, 97 (D.R.l. 2004) (analysis of Rhode leland equal protection and due process is identical to parallel federal rights). l\’lary also alleges that Defendants violated her “right to be free from discrimination” under Article 1, Section 2 of the Rhocle lsland Constitution, but does
6 l\/lary does not allege whether she is seeking relief for discrimination based on sex, disability, or some other protected status not allege what protected status is the basis for the relief. Additionally, the claim must be dismissed because the Rhode lsland Civil flights Act provides l\/lary with a comprehensive remedy for her claim of discrimination See Fo]an V. State/Dep’t. of C'}ii`]dren, Yout]i & E’Unz']jes, 723 A.2d 287, 292 (R.l. 1999) (holding that it was unnecessary to “create or recognize a direct remedy under article 1, section 2 of the Rhode lsland Constitution” for a claim when the plaintiff was provided with comprehensive statutory remedies).
Finally, l\’lary alleges that Defendants violated her “right to justice" under Article 1, Section 5 of the lthode lsland Constitution. 'l`his claim fails because Article 1, Section 5 is not a self'executing section with a private right of action. See Smi']er v. Nap@li'aw, 911 A.Qd 1035, 1039 ns (a.l. 2006).
5. The Negligent and lntentional lnfliction of Emotional Distress Clairns (Counts XIV and XV) Fail ln Count XlV, l\/lary asserts that Defendants’ alleged “negligent acts and/or failure to act constitute negligent infliction of emotional distress” and “such acts caused and/or inflicted emotional distress and other harm to” l\’lary. ECF No. 57 at 1le 145'46. lthode lsland courts have noted that at least some proof of medically established physical symptomology is needed for a successful negligent infliction of emotional distress claim. See Perrottj V. G'onjcberg; 877 A.2d 631, 637 (R..l. 2005); DIBatti'sta v. State, 808 A.2d 1081, 1089 (R.l. 2002) (party asserting a claim involving negligent infliction of emotional distress may not rely on unsupported assertions of physical ills and must produce evidence of the physical manifestations of their alleged emotional distress). Mary’s claim fails because she does not allege facts showing physical harm manifested by objective symptomology. lnstead, the Complaint includes repetitive and conclusory assertions that she needed medical care, suffered emotional distress and psychological damages7 post traumatic syndrome, and loss of enjoyment ECF No. 57 at jle 77, 87, 89, 90, 102, 110, 116, 121, 131, 137, 140. Accordingly, the negligent infliction of emotional distress claim fails ln Count XV, l\flary asserts that Defendants acts and/or failure to act” constitute intentional infliction of emotional distress ECF No. 57 at ll 148. rl`he lthode lsland Supreme Court has required at least some proof of medically established physical symptomology for intentional infliction of emotional distress claims See SI/Verd]i'ck V. Koc}i, 721 A.2d 849, 862'63 (R.l. 1998). Count XV fails for the sallie reason that Count XlV fails as l\’lary does not allege any supporting facts describing the symptomology of her alleged emotional distress beyond conclusory and repetitive assertions 6. The State Law Retaliation Claim (Count XVI) Fails ln Count XVl, Mary alleges that the Defendant City, acting through its attorney, retaliated against her for bringing this lawsuit. ECF l\lo. 57 at ll 154.l As with the Retaliation Claims of Counts Vl and Vll, the Complaint does not define the
“protected activity” in which l\/lary engaged in and against which Defendants retaliated Further, l\flary does not allege that the Defendant City, through its
7 Plaintiffs do not oppose Defendants’ arguments on Count XV l in any manner. See ECF No. 78 at 71 (noting that in “the case at bar there are two counts for Retaliation, Counts Nuinbered Six and Seven”). There is no reference to Count XV l in Plaintiffs’ objection to the motion to dismiss attorney, had any knowledge of this lawsuit as is necessary to show a prima facie case of retaliation Finally, l\'lary cannot show that she suffered an adverse action as there is no standing to challenge the charge against Mr. l\’lorton. See TJ']SOH, 794 A.2d at 468 (noting that the “decision whether or not to prosecute, and what charge to file. ..generally rests entirely in lthe prosecutor’sl discretion.”). lV. CONCLUSION
A fellow student raped l\’lary on school premises She also allegedly experienced inappropriate sexual conduct while at school. Acknowledging these horrible incidents however, does not suffice for a complaint that must allege plausible facts to support the causes of actions Here, the Plaintiffs have filed three complaints yet they still do not allege plausible facts that support any cause of action against these Defendants. The Third Amended Complaint does not recite facts to “raise a right to relief above the speculative level” (Tr-vomb/:y, 550 U.S. at 555) but instead offers “labels and conclusiens” and “naked assertienlsl devoid of further factual enhancement ” fc]l)a], 556 U S. at 678 (quoting Tivoml)]y, 550 U. S. at 55.7)
The Court therefore GRANTS the Defendants’ Joint l\flotion to Disiniss
Plaintiffs’ 'l‘hird Amended Colnplaint. ECl` No. 73
Jo in J. l\'lcConnellv Jr. United States Distiict Judge
April 16, 2019