Christine MORGAN, next friend and mother of minor, R.M., Plaintiff, Appellant, v. TOWN OF LEXINGTON, MA; Lexington Public Schools; Dr. Paul Ash, Superintendent, in his official and individual capacities; Dr. Steven Flynn, Principal, in his official and individual capacities, Defendants, Appellees.
No. 15-2174.
United States Court of Appeals, First Circuit.
May 23, 2016.
823 F.3d 737
III. CONCLUSION
We need go no further. The Mooneys alone have plausibly alleged facts sufficient to demonstrate Article III standing. We thus affirm the dismissal of the complaints as to all the other plaintiffs based on their lack of Article III standing. However, we direct the district court, on remand, to clarify the judgment so that it will operate without prejudice as to claims based on the alleged acceleration and contaminant injuries. At the same time, we vacate the dismissal of the Mooneys’ claims and remand the Adamo action for further proceedings consistent with this opinion. All parties shall bear their own costs.
So Ordered.
John J. Cloherty III, with whom Pierce, Davis & Perritano, LLP was on brief, for appellees.
Before LYNCH, KAYATTA, and BARRON, Circuit Judges.
LYNCH, Circuit Judge.
The district court granted a motion to dismiss brought by the Town of Lexington, Massachusetts (“Lexington“), Lexington Public Schools (“LPS“), its superintendent, and a principal (collectively “the defendants“), ending a civil rights suit filed by a mother, Christine Morgan, who complained that the defendants inadequately responded to the bullying of her son, R.M.,
The complaint relied upon a theory once suggested by the United States Supreme Court that when the state creates a danger to an individual, an affirmative duty to protect might arise. Noting that this court has never squarely accepted such a theory, not having been presented with facts supporting a claim, the district court held that the facts presented here simply do not give rise to a substantive due process violation. We agree. We also agree that the conduct alleged does not fall within the scope of Title IX, which is concerned with actions taken “on the basis of sex,” see
I.
We draw the facts from Morgan‘s original and amended complaints “and the documents incorporated therein.” Ouch v. Fed. Nat‘l Mortg. Ass‘n, 799 F.3d 62, 64 (1st Cir.2015). Where the complaint characterizes a document, we refer to the document. We do not attempt to cover all the facts, only those directly pertinent to the issues.
In the fall of 2011, R.M. was a twelve-year-old student at a middle school located in Lexington, MA. On or about October 5, 2011, several students pulled R.M. to the ground and beat him, repeatedly kicking and punching him in the head and stomach. This was captured on a video given to the administration. The school investigated. The next day, the principal, Steven Flynn, discussed the incident with Morgan. He told Morgan that the incident involved a group of students, known as the “Kool-Aid Club,” and that R.M. had at first agreed to the beating by the students as part of an initiation into their group. He said that R.M. was not the aggressor and that R.M. was not in trouble but that he was not happy with R.M. because he “de-lay[ed] the investigation.” He told Morgan that because of R.M.‘s conduct during the investigation, R.M. would not be allowed to participate in an upcoming school track meet.
On October 17, one of the students who had been part of the Kool-Aid Club incident said to R.M., “You (R.M.) dummy, you got us in trouble.” R.M. was told they would “get him back” for getting them in trouble. R.M. reported the statements to the assistant principal, who told him to stay away from those students.
During the fall of that year, students repeatedly called R.M. “Mandex Man,” “thunder thighs,” and “hungry hippo.” R.M. was “pushed, tripped, punched or verbally assaulted while walking in school hallways.” R.M. was also “table topped,” in which “one person gets down on all fours behind the victim to push the victim behind the knees, and then one or two other individuals push the victim so that the victim falls backwards.” “[O]n multiple occasions R.M. had his pants pulled down in front of other students (male and female), while on school grounds....” On December 21, R.M. was also pushed into a locker, “which caused him to break his watch.”1
On December 22, 2011, Morgan emailed Principal Flynn that R.M. did not feel safe at school and was scared to report bullying for fear of retaliation by his peers. She
On December 23, Morgan met with school officials and reported new information that R.M. had recently given her. This included R.M.‘s general fear of retaliation for having reported some students and specific retaliation from one of the boys who had attacked him. She gave the school sufficient information to start to investigate the allegations. The school official responded that the school would investigate. And at least by January 20, 2012, it did.
On January 2, 2012, R.M. again expressed fear that he would be bullied and refused to go to school. When R.M. did not show up to school on January 4, 2012, as required by state law, see
Morgan met several times with school administrators about her concerns for R.M. During a January 6, 2012, meeting with the assistant principal and a school social worker, Morgan and R.M. were told that there was not time then to discuss specific allegations. Principal Flynn investigated R.M.‘s allegations and on January 20, 2012, reported that a student had admitted to pulling down R.M.‘s pants,3 and that others had confirmed that R.M. had been “table-topped.” The complaint alleges that Principal Flynn told Morgan that none of the students involved would be disciplined.
In late February 2012, Morgan decided to enroll R.M. in a private school, where he finished the school year.
Morgan reenrolled R.M. at the public school at issue here on October 9, 2012. R.M. continued to experience anxiety about attending there and as a result “missed 112 days of school from October 9, 2012, through the remainder of the school year.”
On October 3, 2014, Morgan filed a complaint in federal court against the defendants, alleging (1) a violation of R.M.‘s
II.
We review the dismissal of Morgan‘s complaint de novo, accepting as true all well-pleaded facts and drawing all reasonable inferences in her favor. Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). “We review denials of motions to amend pleadings for abuse of discretion,” Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir.2006), and “[f]utility of the amendment constitutes an adequate reason” for a district court to deny such a motion, Todisco v. Verizon Commc‘ns, Inc., 497 F.3d 95, 98 (1st Cir. 2007). “In assessing futility, the district court must apply the standard which applies to motions to dismiss under
A. § 1983 Substantive Due Process Claim
Morgan‘s § 1983 claim contends that the defendants deprived R.M. of a “protected liberty interest in bodily integrity, specifically, the right to be free from the abuse and injuries” related to the bullying he endured, in violation of his substantive due process rights protected under the
Two of our earlier cases affirming dismissal of substantive due process claims involving juveniles, Hasenfus v. LaJeunesse, 175 F.3d 68, 71-74 (1st Cir.1999); Rivera, 402 F.3d at 35-38, put the instant case into context. In Rivera, a fifteen-year-old girl witnessed a murder and had been told explicitly that she would be protected by police if she agreed to testify. 402 F.3d at 31. She agreed; she was not protected; and she was murdered. Id. at 32. We explained that it is not enough to allege something shocked the conscience.
[T]he purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other. “The Clause is phrased as a limitation on the State‘s power to act, not as a guarantee of certain minimal levels of safety and security,” [DeShaney, 489 U.S. at 195, 109 S.Ct. 998], because “[t]he Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes,” id. at 196, 109 S.Ct. 998....
Id. (third alteration in original).
Even closer to the facts of this case is our decision in Hasenfus, where a fourteen-year-old student who received a reprimand from her teacher attempted to commit suicide in an unattended locker room. 175 F.3d at 69-70. The suit, like this one, named school officials as defendants and specifically alleged a substantive due process violation from their failure to take steps to prevent the suicide attempt given that the officials knew that the student had been raped the year before and that there was a recent rush of student suicide attempts. Id. In that case, the plaintiffs argued that the school had a relationship with the student such that it owed her a “special duty of care.” Id. at 71. Under that theory, set forth by the Supreme Court in DeShaney, an affirmative duty to provide protection or care might arise when the government “so restrains an individual‘s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs.” 489 U.S. at 200, 109 S.Ct. 998; see Rivera, 402 F.3d at 34. In response to the plaintiffs’ argument in Hasenfus, our court noted that:
The Hasenfuses’ position is especially difficult to accept outright since the Supreme Court has come pretty close to rejecting it in a recent dictum which specifically contrasted DeShaney: “[W]e do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect.‘”
175 F.3d at 71-72 (alteration in original) (quoting Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)).
Importantly, we explained “we are loath to conclude now and forever that inaction by a school toward a pupil could never give rise to a due process violation[, as] [f]rom a commonsense vantage, [the student] is not just like the young child in DeShaney who was at home in his father‘s custody and merely subject to visits by busy social workers who neglected to intervene.” Id. at 72. So, too, here. In any event, however, Morgan has not alleged the “pungent facts” that would be required to show that any behavior by school officials was “so extreme as to ‘shock the conscience.‘” Id. (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1952)).
Morgan also asserts that her claim falls within the state created danger theory, which may be implicated “[w]here a state official acts so as to create or even markedly increase a risk” to an individual, id. at 73; see also Coyne v. Cronin, 386 F.3d 280, 287 (1st Cir.2004) (“[T]he Due Process Clause may be implicated where the government affirmatively acts to increase the threat to an individual of third-party private harm or prevents that individual from receiving assistance.” (citations omitted)).
B. Title IX Claim
Title IX of the Education Amendments of 1972 provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” See
Morgan points to the allegation that R.M.‘s pants were pulled down on one occasion in front of a girl, and on some unspecified number of other occasions not described as being in front of any girls.7 One might perhaps view such conduct as harassment “on the basis of sex” depending on the context. Here, however, no such inference is plausible. Morgan‘s complaint does not allege any sex- or gender-based animus by any of the students, and none can be inferred from the circumstances outlined in the complaint.
Moreover, the pulling down of the pants by and large seems clearly to be an adjunct to the bullying on the basis of other considerations, and by itself is not portrayed in the complaint as sufficiently “severe” and/or “pervasive” to supply a sexual harassment claim under Title IX. See Davis, 526 U.S. at 643, 119 S.Ct. 1661 (finding that liability arises only when the school is deliberately indifferent to sexual harassment that is “severe, pervasive, and objectively offensive“). Even if in some cases one could “use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct,” as Morgan suggests, such an inference is not reasonable here, where there is only one incident that can even arguably be deemed sex-based. Morgan‘s citation to Chavez v. New Mexico, 397 F.3d 826 (10th Cir.2005), a workplace sex harassment suit in which the “[p]laintiffs allege[d] a number of gender-based incidents,” id. at 833, is therefore inapposite.
Morgan also attempts to rely on an unpublished per curiam Fifth Circuit opinion, Carmichael v. Galbraith, 574 Fed.Appx. 286 (5th Cir.2014) (per curiam), which found that “[t]he removal of a person‘s underwear without their consent on numerous occasions plausibly constitutes pervasive harassment of a sexual character,” id. at 290. But the case is readily distinguishable because the instant case lacks the “constellation of surrounding circumstances,” id. at 290 (quoting Davis, 526 U.S. at 651, 119 S.Ct. 1661), that the Car-
As such, it was not an abuse of discretion for the district court to determine that amendment of the complaint would be futile.
III.
We affirm the district court‘s dismissal of Morgan‘s complaint and the denial of her motion to amend. No costs are awarded.