B.A. v. Manchester School Dist., et al.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

B.A., Individually and as p/n/f of J.F.

v. 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. The

defendants removed the case to this court. MSD moves for

summary judgment, and B.A. objects.1 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.

I. 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.

1 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

Hampshire law.

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

Supreme Court. N.H. Sup. Ct. Rules, Rule 34; see also Old

Republic Ins. Co. v. Stratford Ins. Co., 777 F.3d 74, 86 (1st

Cir. 2015). 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.

2002). 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. For that

reason, the court will decide the constitutional challenge

without certifying the questions.

2 II. 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.

A. 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

case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.

2015). The facts and reasonable inferences are taken in the

light most favorable to the nonmoving party. McGunigle v. City

of Quincy, 835 F.3d 192, 202 (1st Cir. 2016). “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.’”

3 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)).

B. Background

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”). Peter

Lubelczyk was the principal at the Jewett Street School and had

been in that position since August of 2008. Karen Burkush was

the MSD Assistant Superintendent.

4 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. In

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.” Obj.

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

appropriate.” 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

5 “[t]raining of staff shall include a review of NH RSA Chapter

126-U.”2 Obj. to Mot. for S.J. doc. no. 28-21, at p. 2. RSA

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. The

training required under Rule 116.2 also included Crisis

Prevention Instruction.

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

abuse. RSA 169-C:29.

Frietas testified at her deposition that special education

teachers were included in the personnel to be trained under Rule

116.2. Burkush testified at her deposition that the MSD

superintendent told the school principals that they were

2 RSA Chapter 126-U is titled: “Limiting the Use of Child Restraint Practices in Schools and Treatment Facilities.” 3 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.

6 required to implement Rule 116.2. Lubelczyk, however,

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

4 B.A. speaks Spanish and has difficulty communicating in English. She had a translator for purposes of her deposition taken in this case.

7 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

his eating. 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

swallowed. 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. J.F. would try to rock himself to sleep to

avoid the abuse. The force feeding incidents so exhausted J.F.

that he would put his head on the desk afterwards and sleep.

8 In addition to the force feeding, Varney forced J.F. to

stand up during lunch if he refused to eat. These incidents

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

away. 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

it. 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

inappropriate. Although the nurse did not remember specific

dates during her deposition, she testified that she probably

reported the behavior to Lubelczyk then. The behavior

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

9 to discuss the tone she used with her students and believed that

Varney understood that she needed to speak reasonably to

children. Lubelczyk concluded that Varney was using “tough

love” because she wanted her students to succeed. Lubelczyk

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

tube.

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. She

eventually resigned her position. Varney was charged with

simple assault based on her treatment of another student in her

classroom.5 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

5 The investigation into Varney’s conduct with that child uncovered abuse of other children in her classroom.

10 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

not do.

B.A. brought suit against MSD and Varney, alleging federal

claims under 42 U.S.C. § 1983 and state law claims. B.A.

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

Rehabilitation Act. 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,

11 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

Constitution. 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.

C. 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

process rights. In response to summary judgment, B.A. has not

12 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

Amendment.6

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. In response,

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.

1. 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

the violation. Young v. City of Providence, 404 F.3d 4, 25 (1st

Cir. 2005). The court concluded, in the context of Varney’s

6 B.A. does not assert a procedural due process claim against MSD.

13 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

summary judgment.

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

employees.8 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978). To hold a municipality liable under § 1983, a plaintiff

must show that the “municipality itself cause[d] the

constitutional violation at issue.” City of Canton v. Harris,

489 U.S. 378, 385 (1989). For that reason, a plaintiff must

prove that the municipality’s official policy caused the

violation. Connick v. Thompson, 563 U.S. 51, 60 (2011).

7 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. 8 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).

14 “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. A

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

contact.”9 Id. (internal quotation marks omitted); Kennedy v.

Town of Billerica, 617 F.3d 520, 531-32 (1st Cir. 2010). In

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.

a. Deliberate indifference

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.

9 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).

15 For that reason, deliberate indifference generally requires “a

pattern of similar constitutional violations by untrained

employees.” Id. “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, n.10).10). 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. Canton, 489 U.S. at 390, n.10.10. “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

contact.” 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.

16 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

abuse. 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).

17 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. In response

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. MSD ,

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.

18 Lubelczyk did not ensure that his staff knew of the

mandatory reporting requirements or offer training. Lubelczyk

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. Lubelczyk himself

did not receive the mandatory training until four years later,

in 2016. 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

her students. 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

about Varney.11 The teacher’s aides said that Varney’s yelling

could be heard outside her classroom and that other staff

10 See, e.g., Spady v. Bethlehem Area Sch. Dist., 2016 WL 6995024, at *8 (E.D. Pa. Nov. 29, 2016). 11 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.

19 members asked them about Varney’s conduct. Lubelczyk was

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

acting appropriately.13

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

education teachers. 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

12 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. 13 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).

20 necessary to avoid having Varney use inappropriate, illegal, and

harmful control methods on her students.14

b. Causation

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. Whitfield v.

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

14 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.

21 conduct. 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.

2. 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.

D. 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.

22 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.” Buchanan v. Maine, 469 F.3d 158,

170-71 (1st Cir. 2006). 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

available. 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. See

23 Nieves-Marquez v. Puerto Rico, 353 F.3d 106, 126-27 (1st Cir.

2003). 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.” For that

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. When

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.

E. 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

15 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).

24 liability for Varney’s conduct in those counts, MSD presumes

that B.A. is asserting a theory of vicarious liability. In her

objection, B.A. states that MSD would be liable for Varney’s

actions under the doctrine of respondeat superior. Because MSD

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

MSD, directly. 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

Constitution. B.A. objects to summary judgment on her state law

claims.

25 1. Statutory Immunity

B.A. acknowledges that if RSA 507-B:5 were applied to her

negligence claims in Counts VI, VII, and VIII, those claims

would fail. 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 . She

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

statute. RSA 507-B:5. A school district is a governmental unit

for purposes of RSA 507-B:5. RSA 507-B:1, I. A governmental

unit is not immune, however, for personal injury “arising out of

ownership, occupation, maintenance or operation of all motor

vehicles, and all premises.” RSA 507-B:2. The exception

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).

a. Constitutionality

B.A. argues that the immunity afforded MSD in this case

violates the New Hampshire Constitution. Specifically, B.A.

argues that RSA 507-B:5 deprives J.F. of a remedy in violation

26 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.

i. 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.” Huckins v. McSweeney, 166 N.H. 176, 180 (2014). 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. Id. Because B.A.

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.

ii. Equal Protection

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 508-

27 B:5 and :2 are subject to intermediate level scrutiny and MSD

must show that the immunity provided serves an important

governmental interest.

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. Lennartz v.

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

alike.” Id. (internal quotation marks omitted). If a

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

governmental objective.” Id. at 463 (internal quotation marks

omitted). The burden to show that that the challenged

legislation meets the intermediate scrutiny test “now rests with

the party seeking to uphold the statute.” Id.

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.

28 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

challenge. 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

(2011).

B.A. argues that statutory immunity causes J.F. to be

treated differently than a child injured by a teacher at a

private school. 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. The

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.

29 b. 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

lawful. 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. Farrelly

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

immunity.

c. 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

30 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. Because the

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.

2. 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). In

31 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

3. 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.” Am.

Compl. Doc. 11 at ¶ 66. MSD moves for summary judgment on the

ground that no private right of action exists for damages under

Article 2. 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

16 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.

32 violation of Article 2 when another remedy exists. Marquay v.

Eno, 139 N.H. 708, 721-22 (1995); see also Khater v. Sullivan,

160 N.H. 372, 379-80 (2010). As is explained above, J.F. is not

without a remedy. In addition, a new constitutional tort would

be incompatible with statutory immunity provided to governmental

entities. 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).

Conclusion

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

Varney.

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. The

remaining claims against MSD are that part of Count II

identified above, Count III, Count IV, and Count V.

33 The plaintiff’s motion for certification (document no. 29)

is denied.

Now that the defendants’ motions for summary judgment have

been resolved, the parties know what claims will remain in the

case for trial. Trial is scheduled for the period beginning on

October 3, 2017. 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.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 18, 2017

34 cc: 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.

35