United States District Court, D. 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,
CITY OF PAWTUCKET, RHODE ISLAND; PATTI DiCENSO, SUPERINTENDENT OF PAWTUCKET SCHOOL DEPARTMENT, in her official and individual capacity; PAWTUCKET SCHOOL COMMITTEE and Pawtucket School Committee Members 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 PAWTUCKET LEARNING ACADEMY, in her official and individual capacity; DAVID MORTON, in his official and individual capacity! THOMAS 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 her official and individual capacity; MICHAELA FRATTARELLI, in her official and individual capacity; CHRISTOPHER SWICZEWICZ, in his official and individual capacity; and SHAUN W. STROBEL, PAWTUCKET CITY TREASURER; and unknown Richard and Rita Roes, Defendants.
MEMORANDUM AND ORDER
J. MCCONNELL, JR. UNITED STATES DISTRICT JUDGE.
have jointly moved to dismiss Plaintiffs' Third Amended
Complaint. ECF No. 73, For reasons set forth below, the Court
GRANTS Defendants' motion.
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 Pawtucket School Committee and its members,
Superintendent of School, Patti DiCenso, Principal of the
Pawtucket Learning Academy, Linda Gifford, and additional
teachers and members of the Pawtucket Learning Academy
("PLA") staff, regarding alleged incidents of
sexual assault. At all relevant times, Mary 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 ¶¶ 17, 24. The
Complaint involves five allegations of sexual assault:
1: Mary alleges that she was raped, assaulted, and molested
for two years at the PLA. Id. at ¶ 26. The
allegations include that during school hours and other
occasions, "at or on the way to and from gym classes,
during class hours," unnamed students would "grab
at," "butt slap," and "grope" Mary,
and "make sexual remarks and suggestions to her,"
while Defendants "stood by." Id. at ¶
2: Mary alleges that in April 2016, a "male gym student
got behind [Mary], and simulated sexual fornication by
rubbing his genitalia area against [Mary's] clothed anal
area, in front of the gym teacher and class."
Id. at ¶ 30. The Complaint also includes that
"[a]t that time, [the gym teacher] and/or the school
contacted the police." Id.
3: Mary alleges that in May 2016, a student raped her in the
school bathroom. Id. at ¶ 35. The Complaint
continues that Principal Gifford asked Mary if she "had
sex with [the student]?" and "took no further
steps" when Mary answered yes. Id. at ¶
4: Mary alleges that in June 2016, a student at the school,
Ivander DeBurgo, sexually assaulted her in the school while
she was waiting for her father to pick her up. Id.
at ¶¶ 50, 57. The Complaint includes that Principal
Gifford and other teachers directed Mr. DeBurgo to leave the
building. Id. at ¶¶ 43, 50. After being
directed to leave, Mr. DeBurgo unlawfully re-entered the
building. Id. at ¶ 53. Mr. DeBurgo entered
Defendant Thomas Anderson's classroom and he told Mr.
DeBurgo to leave. Id. at ¶ 47. Mary left Mr.
Anderson's classroom and was found in the bathroom with
Mr. DeBurgo by Mrs. McLaughlin. Id. at ¶¶
Complaint alleges that all Defendants knew of Mr.
DeBurgo's propensity for sexual assault and that
Superintendent Patti DiCenso conspired with Assistant
Superintendent Lee Rabbit and Dean Christopher Swiczewicz to
keep the matter quiet. Id. at ¶¶ 40, 42,
5: Mary alleges that in April 2017, a faculty member, David
Morton, "smacked and grabbed her butt..."
Id. at ¶ 78. The Complaint also alleges that
before the incident, Defendants DiCenso, Rabbit, Gifford,
Swiczewicz, and Anderson "had, for some time, known of
incidents where Mr. Morton touched and tapped the inner thigh
of three other students. Id.
STANDARD OF REVIEW
survive a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), Mary must
present facts that make her claim plausible on its face. See
Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To determine plausibility, the court must first review the
complaint and separate conclusory legal allegations from
allegations of fact. See Rodriguez-Reyes v.
Molina-Rodriguez, 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
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,
.." Twombly, 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. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Nor does a complaint suffice if it
tenders "naked assertion[s] devoid of further factual
enhancement." Id. (quoting Twombly,
550 U.S. at 557); see also Soto-Torres v.
Fraticelli, 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.").
Complaint Fails to State Any Substantive Allegations Against
Defendants Elizabeth Velis, Kern Day, Susan Hall, and
does not make any substantive allegations against Defendants
Velis, Day, Hall, and Frattarelli. 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 Iqbal, 556 U.S. at 678. To
draw an inference, the complaint must allege facts linking
each Defendant to the grounds on which that Defendant is
potentially liable. See Id.
Velis, Day, Hall, and Frattarelli are listed only in
paragraph 12 of the Complaint 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. For these reasons, the claims against
these Defendants are dismissed.
Title IX Claim (Count I) Fails
Count I, Mary sues Defendants under Title IX of the Education
Amendments of 1972 ("Title IX"). See 20 U.S.C.
§§ 1681, et seq. Mary alleges that the Defendant
School District violated her rights when it "continued
to subject [Mary]., .to sexual harassment based on her
sex" and "failed to promptly and appropriately
respond to the sexual harassment and assaults..." ECF
No. 57 at ¶¶ 81, 82. Title IX 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." 20 U.S.C. § 1681(a).
Title IX Claim Fails Against All Individual Defendants.
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." Frazier v. Fairhaven Sch. Comm.,
276 F.3d 52, 65 (1st Cir. 2002). Here, no individually named
defendant is a recipient of federal funding. Accordingly,
Title IX claims against all individual Defendants are
Title IX Claim Fails to Set Forth Facts to Establish the
Required Elements of Notice, Severity, and Deliberate
recipient of federal funding can be liable under Title IX if
"its deliberate indifference subjects its students to
harassment." Doe v. Brown University, 896 F.3d
127, 130 (1st Cir. 2018) (citing Davis v. Monroe Cty. Bd.
of Educ, 526 U.S. 629, 644 (1999)). To establish such a
"deliberate indifference" claim, Mary must set
forth sufficient plausible facts that would show that (1) 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." Porto v. Town of Tewksbury, 488
F.3d 67, 72-73 (1st Cir. 2007).
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. EOF No. 57 at ¶ 26. The
allegations read as generalized assertions that
"[d]uring school hours and [diverse] 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..." Id.
at ¶ 27. Mary also alleges that she was subjected to
several sexual incidents, 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.
Id. at ¶ 28.
allegations here however do not set forth plausible facts of
knowledge by PLA officials. Mary does not allege that she
reported the acts or that any school official saw them.
Instead, she alleges that the "defendant school and
fits] personnel" were "armed with knowledge of such
sexual assaults..." Id. These generalized
assertions are insufficient. Iqbal, 556 U.S. at 678
("naked assertions] devoid of further enhancement"
are not sufficient); see Pollard v. Georgetown Sch.
Dist., 132 F.Supp.3d 208, 231 (D. Mass. 2015) (holding
that undetailed and conclusory assertions that defendant had
knowledge were insufficient to establish notice); see also
Doe v. Bradshaw, 2013 WL 5236110, at *11 (D. Mass.
Sept. 16, 2013) (dismissing portion of a Title IX claim based
on knowledge of harassment because plaintiffs offered only
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." Id. at ¶ 31. Courts have rejected
constructive knowledge and held that Title IX recipients must
have actual knowledge of the harassment. See Davis,
526 U.S. at 650; Gebser v. Lago Vista
Independent, School Disk, 524 U.S. 274, 289 (1998).
failed to plead any plausible facts of knowledge on the part
of the school officials, Mary necessarily did not set forth
any fact to establish "deliberate indifference" by