DocketNumber： Civil Action No. 13-cv-11870-IT
Judges： Talwani
Filed Date： 9/30/2015
Status： Precedential
Modified Date： 11/7/2024
MEMORANDUM
I.- Introduction
Plaintiff Isabella Hankey (“Plaintiff’) brings this suit alleging that Defendants failed to adequately respond to a pattern of bullying and threats- she suffered at the hands of other students at Concord-Car-lisle High School. Plaintiff asserts claims under Title IX of the Education Amendments of 1972, 42 U.S.C. § 1983, and certain Massachusetts provisions against the Town of Coneord-Carlisle (the “Town”), the Coneord-Carlisle School District (the “School District”), Superintendent Diana Rigby (“Superintendent Rigby”), Principal Peter Badalament (“Principal Badalament”), and Assistant Principal Alan Wein-stein (“Assistant Principal Weinstein”). Presently before the court is Defendants’ Motion for Summary Judgment [#34],
Upon reviewing the summary judgment record, the court concludes that Plaintiff has presented evidence that she was subject to serious and escalating incidents of bullying and threats during her time' at Coneord-Carlisle High School. From the summary judgment evidence, a jury could find that Defendants’ response to. these incidents was at times ineffective and unreasonable, and that Defendants should have done more. to protect Plaintiff and take the incidents seriously-, However, the strict and demanding legal-requirements for the causes of action that Plaintiff has brought preclude liability in this case. For this reason and as described more fully below, there is no genuine dispute as to any material fact and Defendants are entitled to judgment as a matter of law.
II. Factual Background
A The School District’s Bullying Prevention and Intervention Plan
When Plaintiff began her freshman year in September 2009, Coneord-Carlisle High School had adopted a “Bullying Prevention and Intervention Plan.” The Plan required that the school “fully investigat[e] ... allegations of bullying or retaliation,” and before doing so, “the principal or designee will take steps to assess the need to restore a sense of safety to the alleged target and/or to protect the alleged. target from possible further incidents.” PL’s Statement of Undisputed Material Facts ¶ 119 [#55] [hereinafter PL’s Facts]. The Plan further required the school to “document any incident of bullying that is reported,” “maintain a written record of the investigation,” and “have a means for anonymous reporting.” PL’s Facts ¶¶ 158, 210-11. As described below, this Plan was not followed in this case.
B. The Bullying and Threats
In September 2009, at the- start of Plaintiffs freshman year, three girls posted a
At the beginning of Plaintiffs sophomore year, a student left Plaintiff a voice-mail message after a weekend party telling Plaintiff: “Don’t you ever fucking come near anyone I know.” Debra Hankey Dep. 47-49 in Pl.’s Ex. D [#40-3].
In the fall of Plaintiffs junior year, on October 6, 2011, lines were keyed on Plaintiffs car while the car was parked in the school parking lot. Defs.’ Facts ¶ 6. Other students had also experienced incidents of vandalism to their cars in the school parking lot around this time. Defs.’ Facts ,¶ 8.
The majority of harassing incidents occurred during the spring of Plaintiffs junior year. On February 10, 2012, when Plaintiff returned to her car parked at the school parking lot, she found feces on the driver’s side door of her car. Defs.’ Facts ¶ 14. A month later, on March 8, 2012; Plaintiff and a friend went to the school parking lot and discovered the word “cunt” keyed on the rear bumper of Plaintiffs car. Defs.’ Facts ¶ 19. On May 13, 2012, while Plaintiffs car was parked at Kimball Farm’s Ice Cream, where Plaintiff worked, someone keyed “#pathetic” onto her car. Defs.’ Facts ¶ 35. A iriend of hers had also seen “#pathetic” posted online about Plaintiff. Defs.’ Facts ¶ 37. On the morning of May 17,2012, while in the school’s parking lot, Plaintiff discovered the word “retard” keyed onto her car. Defs.’ Facts ¶ 38; PL’s Facts ¶ 141. On May 30, 2012, Plaintiffs noticed “ha-ha” keyed on the driver’s side door of her car while the car was parked at a restaurant. Defs.’ Facts ¶¶ 43-44.
On Friday, June 1, 2012, Plaintiff returned to the school locker room during softball practice and discovered the words “Kill Belle” in a bathroom stall. Defs.’ Facts ¶ 48. On June 7, 2012, Plaintiff was in the school bathroom with friends when she discovered the words “Belle’s dead at 9:15” in a bathroom stall. Defs.’ Facts ¶ 68. On June 8, 2012, a student discovered “Don’t Belle” written on a bathroom stall at school. Defs.’ Facts ¶ 80.
On August 19, 2012, during the summer before her senior year, Plaintiff discovered the word “Ready?” keyed by her gas tank and a key marking across her passenger door after having parked her car overnight at a friend’s house. Defs,’ Facts ¶ 90; PL’s Facts ¶ 170.
At the start of Plaintiffs senior year, on September 14, -2012, Plaintiff found “September 15” written on a bathroom stall at school. Defs.’ Facts ¶ 98. Plaintiff looked in other stalls and saw her name elsewhere. Defs.’ Facts ¶ 99. On September 19, 2012, a student discovered the name “Belle” with a slash through it in .a school bathroom stall. Defs.’ Facts II103. .
C. Defendants Had, Notice of the Incidents of Bullying and Threats
When Plaintiff started at Concord-Carlisle High School, the Individual Defendants were employed by the School District. Alan Weinstein was Assistant Principal, Peter Badalament was Principal, and Diana Rigby was Superintendent. Detective Scott Camilleri, who is not a named defendant, was the School Resource Officer and. an employee of the Police Department.
The record reflects that Assistant Principal Weinstein and Principal Badalament were promptly advised of nearly all of the incidents directed at Plaintiff during her freshman through senior years. Defs.’ Facts ¶¶ 2, 6-7, 21, 25, 41, 49-51, 70, 72, 80, 99, 102; PL’s Facts ¶¶ 121, 126-127, 162; Éx. 5 to Compl., in PL’s Ex. B; Ex. 25 to Compl. 'in PL’s Ex. B; Debra Hankey Dep.
D. The School District and Police Department's 'Efforts to Protect Plaintiffs Car Prom Vandalism
The record documents efforts by the school and police to protect Plaintiffs car from vandalism. When lines were first keyed on Plaintiffs car on October 6, 2011, Assistant Principal Weinstein told Principal Badalament about the incident. Defs.’ Facts ¶ 7. Both Assistant Principal Wein-stein and Plaintiff spoke with Detective Camilleri about the incident. Defs.’ Facts ¶ 9. Plaintiff told Detective Camilleri that she had no idea who may have keyed her car. Defs.’ Facts ¶ 10. Detective Camilleri took pictures of the car and told Plaintiff that he would investigate further. Defs.’ Facts ¶¶ 10-11. Assistant Principal Wein-stein told Plaintiff that she could park her car in an alternative parking lot, which had previously assisted a student whose car had been vandalized. Defs.’ Facts ¶ 13.
After feces was smeared on Plaintiffs car door and the word “cunt” was keyed onto Plaintiffs car in February and March of 2012, Principal Badalament again offered Plaintiff an alternative parking lot. Defs.’ Facts ¶ 26. Detective Camilleri met with Plaintiff and took photographs of her car. Defs.’ Facts ¶¶ 22-23. Principal Bada-lament emailed Assistant Principal Wein-stein, Detective Camilleri, and Assistant Principal Truslow stating that he would look into getting -cameras placed in the parking lot and that “I want all 3 of you to help out investigating.” Defs.’ Facts ¶ 29; Defs.’ Ex. D (email attached to affidavit); Detective Camilleri responded to the email and stated that he had requested more patrol units to go through the parking lot, that he would spend more time in the lot in both marked and unmarked units, and that he would look into getting cameras installed. Defs.’ Facts ¶ 30; Defs.’ Ex. D. Assistant Principal Weinstein testified that following these incidents, the school sent two monitors to the school parking lot for large amounts of the day. Weinstein Dep. 100 in Defs.’ Ex. -C. Based on Plaintiffs testimony, it is unclear whether the two monitors had been assigned to the parking lot prior to these incidents. PL’s Dep. 24-25 in Defs.’ Ex. A. Additionally, police officers, including Detective Camilleri, went to the school parking lot for certain amounts of the day. Defs.’ Facts ¶ 28;
After Plaintiff found “Kill Belle” in a bathroom stall'at school on June 1, 2012, the school assigned a monitor to watch Plaintiff’s car during the day for the month of June. Defs.’ Facts ¶ 54. Detective Cam-illeri also told Plaintiffs parents that he wanted Plaintiff to park in the alternative lot near the cafeteria because police had installed a camera there. Defs.’ Facts ¶ 60; Camilleri Aff. ¶ 10. '
During the summer of 2012, the school worked on obtaining bids and proposals to have permanent cameras installed at the school, including five exterior-pole-mounted cameras in the parking lot. Defs.’ Facts ¶ 87. By the week of September 11, 2012, the school’s cameras had been installed. Defs.’ Facts ¶ 97. The cameras became operational on or about September 19. Defs.’ Facts ¶ 97.
Although the record reflects the above efforts to protect Plaintiff’s car from vandalism, the record shows meager efforts to root out the cause and stop the bullying of Plaintiff prior to actual threats being made.
Assistant Principal Weinstein testified that after he learned that students had posted a picture online giving Plaintiff the middle finger at the beginning of Plaintiffs freshman year in 2009, he spoke with the three girls accused of posting the picture, told the girls to take the picture down, spoke with the girls’ mothers, spoke with Detective Camilleri about the incident, and later checked in on Plaintiff. Defs.’ Facts ¶1¶ 2, 5. Assistant Principal Weinstein produced no notes or records documenting these conversations.
After Plaintiffs car was first keyed on October 6, 2011, Assistant Principal Wein-stein informed Principal Badalament and spoke with Plaintiff and Detective Camil-leri about the incident. Defs.’ Facts ¶¶ 7, 9. Assistant Principal Weinstein testified that he also spoke with two of the girls accused of posting the online picture of Plaintiff in 2009 to see if they knew anything about the keying. Defs.’ Facts ¶ 12. Although Weinstein testified that he “wrote up the incident,” Defendants have not produced any reports or notes of these alleged student interviews. Pl.
Assistant Principal Weinstein testified that after he learned that feces had been smeared on Plaintiffs car in February 2012, he. again spoke with the students about the incident. Weinstein ®ep. 81-82, 116 in Pl.’s Ex. C. Defendants have not, however, produced any notes of these alleged ' conversations. Also after’the feces incident, Plaintiffs math teacher e-mailed Plaintiffs guidance counselor expressing concern, and Plaintiffs guidance counselor forwarded the email to Assistant Principal Weinstein. Pl.’s Facts ¶¶ 125,126; Ex. 5 to Compl. in PL’s Ex; B. In response, Assistant Principal Wéinstein did not enlist the guidance counselor! or math teacher’s assistance in ferreting out the bullying, but instead responded ‘Will catch you up when I can. Suffice it to say, I’m-am [hie] totally on top of it.” PL’s Facts ¶ 127; Ex. 5 to Compl. in PL’s Ex. B.
After “cunt” was keyed on Plaintiffs car in March 2012, Assistant Principal Wein-stein met with Plaintiffs mother in the school office. PL’s Facts ¶ 130; Weinstein Dep! 102-03 in PL’s Ex. C. Detective Cam-illeri met with Plaintiff in the school office as well. Defs.’ Facts ¶ 22. Assistant Principal Weinstein’s recollection of the conversation in which Plaintiff reported this incident offers no ‘acknowledgement of the bullying that was transpiring and focuses instead on her demeanor in reporting the incidents.- In describing this conversation, Weinstein testified:
I had related to her what I was doing and who I was trying to speak to, and I basically told her that I have told the police, I have told the principal, we are working on it. She kept ‘ screaming at me. ... And'at some point I said, “... I don’t know what else you would like me to do.”
PL’s Facts ¶ 128; Weinstein Dep. 145 in PL’s Ex. C. Consistent with this testimony, Assistant Principal Weinstein wrote in an email to Principal Badalament about the investigation that “[m]y main interaction was the one in which ... [Plaintiff] attacked me verbally.” PL’s Ex. H.
The same day that Plaintiff found “cunt” keyed on her car, Plaintiffs mother called Superintendent Rigby, to express dissatisfaction-with the school’s handling of the
On May 13, 2012, after Plaintiff found “#pathetic” keyed on her ear while parked at Kimball Farm’s Ice Cream, Mrs. Han-key left a message for. Principal Badalament. Debra Hankey Dep. 72 in Pl.’s Ex. D. Principal Badalament did not. return her call until, after Plaintiffs car was keyed again four days later. Debra Hankey Dep. 83 in Def$.’ Ex. E. '
On May 17, 2012, when Plaintiff discovered the word “retard” keyed onto her car and tried to speak with Assistant Principal Weinstein, he told her that he could not “deal with .it right now” because “tomorrow is MCAS” exams and “Mr. Badalament is the person you are supposed to talk to.” Weinstein Dep. 171-72 in Defs.’ Ex. C. Plaintiff reported the incident to Principal Badalament. Defs.’ Facts ¶ 41. That day, Principal Badalament called Mrs. Hankey regarding the “#pathetic” marking from four days prior. Debra Han-key Dep. 83 in Defs.’ Ex. E.- Inspector Booth and Detective Camilleri met with Plaintiff and her mother and took photographs of the keyed marking. Defs.’ Facts ¶ 40.
There is no evidence in the record that throughout all of the keying and vandalism, prior to the first threat, Assistant Principal Weinstein or Principal Badalament reached out in any way to faculty, coaches, or parents (other than the Han-keys) for their assistance in investigating the bullying.
F. The School District’s Greater Efforts to Protect Plaintiff After the Death Threats
On Friday, June 1, 2012, after Plaintiff found “Kill Belle” written on a bathroom stall at school, Plaintiffs parents met with Principal Badalament and Detective Cam-illeri. Defs.’ Facts ¶ 51. Detective Camilleri advised Inspector Booth of the Carlisle Police Department of the incident and requested extra patrol of the Hankey residence. Defs.’ Facts ¶ 52. Two days later, on Sunday, June 3, 2012, Superintendent Rigby called the Hankeys and told them that a monitor would be shadowing Plaintiff on Monday at school. Debra Hankey Dep. 110 in Defs.’ Ex. E.
The next day, on Monday, June 4, 2012, Ken Kopelman (“Kopelman”), a campus monitor “in his 60’s or 70’s,” was assigned to shadow Plaintiff during the school day. Defs.’ Facts ¶ 53; PL’s Facts ¶ 154; Bada-lament Dep. 146 in PL’s Ex. E. At 7:00 a.m. that Monday, Detective Camilleri met with Superintendent Rigby and Principal Badalament. Defs.’ Facts ¶ 55. Principal
At 11:30 a.m. that Monday, June 4, 2012, Principal Badalament held an Incident Management Team meeting in the school’s office, which Lieutenant Crowe from the Carlisle Police Department attended. Defs.’ Facts ¶ 58. The members of the team were briefed on the incident. Defs.’ Facts ¶ 58. That afternoon, Plaintiffs parents had a meeting with a number of police officers and Detective Camilleri at the Concord Police Station, to which school administrators were invited but did not attend. Defs.’ Facts 11 59; Pl.’s Facts ¶ 153; Debra Hankey Dep. 106 in PL’s Ex. D.
Ken Kopelman shadowed Plaintiff during her classes that Monday, Juné 4, 2012, and watched her get into her car and leave for home. Defs.’ Facts ¶ 61. Principal Ba-dalament testified that he heard that Ko-pelman had gone into Plaintiffs video class and asked the teacher to identify Plaintiff in front of other students, and that this had not been executed properly. PL’s Facts ¶ 154; Badalament Dep. 147 in PL’s Ex. E. According to Plaintiff, Kopelman embarrassed her and could not protect her. Defs.’ Facts ¶ 63. The next day, the Hankeys asked that Kopelman stop shadowing Plaintiff. Defs.’ Facts ¶ 63. The school assigned a female tutor to monitor Plaintiff and then a third person. • Defs.’ Facts ¶ 64. Plaintiff and- her parents were not satisfied with either-of these monitors. Defs.’ Facts ¶ 64. Plaintiffs softball coach, Coach McGloin, then began to shadow Plaintiff, as did teacher McCaffrey. Defs.’ Facts ¶ 65. This arrangement continued for the remaining two weeks of the school year. Defs.’ Facts ¶ 65.
Ón June 7, 2012, after Plaintiff found “Belle’s dead at 9:15” on a school bathroom stall, Assistant Principal Weinstein and Coach McGloin called Detective Cam-illeri. Defs.’ Facts ¶ 71. When‘Detective Camilleri arrived, he photographed the markings and then met with Principal Ba-dalament, teacher McCaffrey, Plaintiff, Mrs. Hankey, and Plaintiffs friend. Defs.’ Facts II 72. After Plaintiff and her friend recounted what happened, teacher McCaf-frey escorted Plaintiff back to class at Plaintiffs request. Defs.’ Facts ¶ 72. A detective arrived to photograph the marking-while another detective attempted to process the stall for fingerprints but the results were negative. Defs.’ Facts ¶ 73. Mrs. Hankey asked Principal Badalament to hold a school assembly to ask students to come forward with information, but Principal Badalament did not think that an assembly was a good idea. Defs.’ Facts ¶ 74.
That day, on June 7, 2012, Principal Badalament held another Incident Management Team meeting. Defs.’ Facts ¶ 75. Detective Camilleri asked the school to collect handwriting samples from junior and senior girls. Badalament Dep. 168 in PL’s Ex. E. The school gathered handwriting samples from English classes; howev
Also on June 7,- 2012, Principal Badalament sent out a “Connect-Ed” message to the school community advising them of the threat, and that the school was working with police. Defs.’ Facts ¶ 76. The message contained an, email address for the anonymous reporting of tips, and tips came in. Defs.’ Facts ¶ 76. Prior to June 2012, the school did not have an anonymous means for reporting. Defs,’ Facts ¶ 158; Badalament Dep. 136 in Pl.’s Ex. E.
The next day, June 8, 2012, the school held another Incident Management Team meeting, -during which members discussed a letter that' teachers were going to read •during first block classes urging, students to report any information. Defs.’ Facts ¶ 75-77- Plaintiff testified that the reading ■subsequently took place. Plaintiff Dep. 78 in Defs.’ Ex. A. Tips came in and Detective Camilleri spoke with students who were the subjects of tips. Defs.’ Facts ¶¶ 78-79.
On June 8, 2012, after a student reported discovering “Don’t Belle” written on a bathroom . stall, Principal Badalament called Detective Camilleri. Defs,’ Facts ¶ 80. Detective Camilleri photographed the marldng, noticed the . handwriting appeared different from previous markings, and attempted to process the- stall for fingerprints but the results ,were negative. Defs.’ Facts ¶ 81. That same day, Principal Badalament received an email from a parent informing him that there was talk that a particular group of students known as the “Sexy Seven” were behind, the incident; and named a particular student “LR.” Defs.’ Facts ¶ 82; Pl.’s Facts ¶ 160. Three days later, on June 11, 2012, Detective Camilleri spoke with Principal Badalament about having cameras installed. Defs.’ Facts ¶ 83; ■
On June 14, 2012, teacher McCaffrey emailed Principal Badalament, Detective Camilleri, and Plaintiffs parents notifying them that a student had given her the name of a particular student “LR” that was allegedly involved in vandalizing Plaintiffs car. Pl.’s Facts ¶ 162; Ex. 17 to Compl. in Pl.’s Ex. B. Principal Badalament testified that he spoke with student “LR.” PL’s Facts ¶ 163; Badalament Dep. 177-78 in PL’s Ex, E. When asked if he interviewed “LR” a second time, Principal Badalament testified: “No. I think I had gotten everything I could out of her ... it didn’t , seem to make sense to interview her again. She was denying, denying, denying ____” PL’s Facts ¶ 194; Badalament Dep. 178 in PL’s Ex. E.
Around June 16, 2012, after the school’s electrician installed the necessary power sources, the Concord Police installed cameras outside four or five girls’ bathrooms, including those in the A, H, S, and L Buildings. Defs.’ Facts ¶ 84; Camilleri Aff. If 11 in Defs.’ Ex. D. According to Plaintiff, however, Defendants did not turn over any footage from before September 19,2012. It .is therefore unclear whether the cameras were operational or used by the school or police.
On June 18, 2012, Detective Camilleri and another detective met with a particular student and the student’s mother, informing the student that her name continually came up in connection with the Hankey investigation. Defs.’ Facts ¶ 85. The student denied involvement or knowledge of any incidents involving Plaintiff. Defs.’ Facts ¶ 85.
Assistant Principal Weinstein retired at the end of the school year in June 2012. Defs,’ Facts ¶ 86. Based on the record, it is disputed whether Assistant Principal Weinstein discarded any notes regarding the Hankey investigation when he retired. Weinstein testified that he “gave those few notes that I had on the case to Peter [Badalament]” and “I took almost everything that was in my desk and dumped in into the recycling bin [b]ut nothing having to do with Belle Hankey was destroyed.” Weinstein Dep. 210-20 in Pl.’s Ex. C. However, in response to an email from Principal Badalament requesting Weinstein to produce his “files/notes from last spring (legal request)” regarding the Hankey investigation, Weinstein wrote:
Unfortunately, I deemed it best to destroy my disciplinary records, except what I reported on X2, which included suspensions, etc." Perhaps, if it would help, maybe I could reconstruct some things with you and Scott [Camilleri]. My' main interaction was the one in which ... Belle attacked' me verbally. Otherwise I was simply reportage [sic] of 2 keying incidents and 2 bathroom wall incidents, but I don’t have dates or further info on them. So, I can meet with you and Scott [Camilleri], but I can’t provide written documentation.
PL’s Ex. H. In response to receiving this email, Principal Badalament emailed the Hankeys:
[Weinstein] shared with me in an email that he shredded all of his files when he retired last June. ... [T]his- disturbed [me] a great deal when I learned of it. While we do not have copies of his notes, I am confident that all useful information, has been documented in my files as I took over the investigation from him in early June.
Ex. 33 to Compl. in PL’s Ex. B.
During the summer of 2012, the school worked on óbtaining bids and proposals to have -"permanent cameras installed at the school, including fourteen cameras in the school’s interior. Defs.’ Facts ¶ 87.
In late July 2012, thé Hankeys met with Principal Badalament, Superintendent Rigby, Detective ' Camilleri, Officer Réi-nold, Brian Miller (a new Assistant Principal), the school’s attorney, and the Han-keys’ attorney. Defs.’ Facts ¶ 88. The Hankeys presented a list of things they wanted done in preparation for the upcoming school year, including installation of cameras, better communication, and bathroom checks. Defs.’ Facts ¶ 89.
On August 28, 2012, Plaintiff and her parents attended a meeting at the school with Principal Badalament, Michael Goodwin, and Guidance Counselor Haskins to discuss the plan for Plaintiffs return to school, which included notifying staff, restroom plans, and assigning a “go-to” person. Defs.’ Facts 11 94. Upon arriving at school, Plaintiff had an anxiety attack and was unable to enter the building for twenty-five minutes. PL’s Facts ¶ 172. When Plaintiff was able to enter the building, the school nurse told the Hankeys that “nobody should ever be this afraid to. go to school.” PL’s Facts ¶ 172; Debra Hankey Dep. 128 in PL’s Ex. D. At the meeting, the attendees also discussed that the installation of cameras was not going to be completed by the start of the school year-but was expected to be completed by September 11 (exterior cameras) and September 14 (interior cameras). Defs.’ Facts ¶ 96; PL’s Facts ¶ 173. Plaintiff had enrolled in the new Rivers and Revolutions
By the week of September 11, 2012, the school’s, cameras had been-installed; however, the company installing the cameras had difficulty getting them operational. Defs.’ Facts ¶ 97. The cameras became operational on or about September .19. Defs.’ Facts ¶ 97.
On September 14, 2012, after Plaintiff found “September 15” and her name on a bathroom stall at school, Plaintiff and her mother met with Assistant Principal Miller, teacher Goodwin, and Detective Camil-leri. Defs.’ Facts ¶ 102.
Also around this time, teacher McCaf-frey emailed Principal Badalament: . -
I was surprised to learn that there was another threat against Belle .Hankey that was found in a -bathroom on Friday ... surprised because nothing has been communicated out to the faculty. I know you understand and respect that in dealing with the safety and well being- of all students, teachers should have, timely information on threats and chronic, or severe instances of bullying.
PL’s Facts ¶ 178; Ex. 25 to Compl. in PL’s Ex. B. Principal Badalament replied to teacher McCaffrey discounting the events: “The short version is that what was written wasn’t actually a threat although it was-disconcerting to Belle. I agree that you should have been notified seeing as that you and Lisa have been such key supporting figures for her. I did share what happened with.-the Chairs yesterday.” PL’s Facts ¶ 179; Ex. 26 to Compl. in PL’s Ex. B. Principal Badalament subsequently testified regarding this email: “I guess that is what I said there. But when I think about it, they are clearly threatening things that were written on -the walls.” PL’s Facts ¶ 180; Badalament Dép. 208 in PL’s Ex. E.
On September 17, 2012, Principal Bada-lament emailed Mr. Hankey:
On the camera front,' it’s my understanding that they finished the installation last week and that we are supposed to get trained to use them this week. No excuse on the delay other than I know it was á difficult process to get them in, however, I apologize that the job wasn’t finished before school started.
PL’s Facts ¶ 181; Ex. 27 to Compl. in PL’s Ex. B. As stated above, the cameras became operational on or about September 19, 2012. Defs.’ Facts ¶ 9,7.
On September 19, 2012, when a student reported discovering, the name “Belle” with a slash through it in a bathroom stall, Assistant Principal Miller called Detective Camilleri and secured the bathroom. Defs.’ Facts ¶ 103. Assistant Principal Miller called Mrs. Hankey, who asked that teacher Goodwin escort Plaintiff to her car at the end of the day. Defs.’ Facts ¶ 104. Detective Camilleri met with Assistant Principal Miller and Assistant Principal Colleen Meany .in the bathroom,. where Detective Camilleri photographed the markings. Defs.’ Facts ¶ 105.
After school that day, September 19, 2012, Detective Camilleri and Assistant Principal Miller met with the Hankeys. Defs.’ Facts ¶ 106. At the meeting, Detective Camilleri advised that there was limited information to follow up on. Defs.’ Facts ¶ 107. Mrs. Hankey identified persons she thought might be involved or might know information about a text message between some students. Defs.’ Facts ¶ 107. From this point until October 2012, Detective
III. Discussion
Defendants move for summary judgment on all counts. The role of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) (quoting Fed. R. Civ. P. 56 advisory committee’s note). Summary judgment is proper when “the movant 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 dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the- non-moving party. A fact is material if-it has the potential of determining the outcome of the litigation.” Patco Constr. Co. v. People’s United Bank, 684 F.3d 197, 206-07 (1st Cir.2012) (internal quotation marks and citations omitted). In ruling on a motion for summary judgment, the court must view the record in the light most favorable to the nonmovant and draws all reasonable inferences in the non-movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990).
“To succeed, the moving party must show that there is an absence of evidence to support the nonmoving' party’s position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990). If the moving party does so, “the burden shifts to the nonmoving party to establish the • existence of an issue of fact that could affect the outcome of the litigation and from which a reasonable jury could find for the [nonmovant].” Id. “It is settled that the nonmovant may not rest upon-mere allegations, but .must adduce specific, provable facts demonstrating that there is a triable issue.” Id. (quoting Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989)).
A. Count I: Title IX-
In Count I, Plaintiff brings a claim against the Town and School District for sex discrimination under Title IX. “Title IX prohibits gender-based discrimination in a wide array of programs and activities undertaken by educational institutions.” Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir.2002). It provides that “[n]o person ... 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). In Davis v. Monroe Cnty. Bd. of Educ., the Supreme Court recognized that a school receiving federal funds may be liable for sex-based discrimination under Title IX if the school is . deliberately indifferent to student-on-student sexual harassment that is sufficiently severe and pervasive to deprive the student of educational opportunities or benefits. 526 U.S. 629, 633, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). To prevail on such a claim, a plaintiff must establish that: (1) the school had actual knowledge of the harassment, (2) the harasser was uiidér the school’s control, (3) the harassment was based upon the victim’s sex, (4) the harassment was “so severe, pervasive, and .objectively offensive that it effectively bar[red] the victim’s access to an educational opportunity or benefit,” and (5) the school was deliberately indifferent to the harassment. Id.
Defendants move for summary judgment on Plaintiffs Title IX claim on
Plaintiff presents two arguments in opposition to summary judgment on this ground. First, Plaintiff contends that a jury could find that she suffered severe and pervasive sexual harassment because on March 8, 2012, the word “cunt” was keyed into the rear bumper of her car. See Pl.’s Post Summ. J. Hearing Br. 6 [#77] (“The carving of the word “c**t into Plaintiffs bumper was severe ;[and] by its very definition is sexual harassment.”).
Plaintiff relies on Title VII case law in which courts have found that the repeated and pervasive use of sexually-degrading, gender-specific epithets and comments in the workplace may constitute actionable sexual harassment. See, e.g., Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229 (1st Cir.2007) (holding that male co-worker’s conduct in, inter alia, repeatedly calk ing plaintiff a “whore,” “slut,” “bitch,” and “cunt” over the course of months could constitute sexual harassment); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir.2002) (affirming jury finding of sexually hostile work environment where female plaintiff was subject to “humiliating sexual remarks and innuendos” on a daily basis for over a year);, Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996) (holding that evidence that male employees consistently called plaintiff “whore,” “floor whore,” “curb whole,” “curb side cunt,” and “bitch,” a male employee pushed plaintiff against a wall and placed his knee between her legs, and other men made comments to plaintiff that a woman had no place in a car dealership was sufficient to establish sexual, harassment); Andrews v. City of Phila., 895 F.2d 1469, 1485 (3d Cir.1990) (“[T]he pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment.”).
Even in the Title VII context, however, the First Circuit, has found that “isolated incidents” may not constitute pervasive sexual harassment. See Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st Cir.2003) (“A hostile work environment generally is not created by a ‘mere offensive utterance,’ nor does it arise from ... ‘isolated incidents.’” (internal citations omitted)); see, e.g., Pomales v. Celulares Telefonica, Inc,, 447 F.3d 79, 84 (1st Cir.2006) (affirming summary judgment on Title VII claim on the ground that male supervisor’s sexual comment and gesture on one occasion did not rise to the level of severe and pervasive sexual harassment); Ponte v. Steelcase, Inc., 741 F.3d 310, 320 (1st Cir.2014).
Moreover, although Title VII case law is instructive for Title IX purposes, see Frazier, 276 F.3d at 65-66, the Supreme Court has cautioned courts to “bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.” Davis, 526 U.S. at 651, 119 S.Ct. 1661; see also id. at 651-52, 119 S.Ct. 1661 (“[I]n the school setting, students often engage in insults, banter, teasing, shoving,
- Plaintiff has not provided evidence from which a jury could find that the harasser(s) act of keying “cunt” into Plaintiffs car bumper on one occasion constitutes severe and pervasive sexual harassment, as required for a Title IX claim. See Pomales, 447 F.3d at 83 (“[Sjummary judgment is an appropriate vehicle for po-lic[ing] the baseline for hostile environment claims.” (internal quotation marks and citation omitted)). Nor has Plaintiff provided evidence from which a jury could find that this keying incident deprived Plaintiff of access to educational opportunities or benefits, or that the Defendants responded with deliberate indifference to this incident. Accordingly, to the extent Plaintiff argues that the harasser(s)’s act of keying “cunt” into her car, standing alone, gives rise to a Title IX claim, her argument fails.
Second, Plaintiff argues that a jury could reasonably find that the other incidents of bullying and threats were “based upon sex” as well, and that all incidents taken together constitute severe and pervasive sexual harassment. As described above, the other incidents include posting a picture online giving Plaintiff the finger; leaving a voicemail for Plaintiff stating “Don’t you ever fucking come near anyone I know”; keying a line on Plaintiffs car; smearing feces on Plaintiffs car door; keying “#pathetic” on Plaintiffs car; posting “#pathetic” online about Plaintiff; keying “retard” on Plaintiffs car; keying “ha-ha” on Plaintiff’s car door; marking “Kill Belle” on a bathroom stall; marking “Belle’s dead at 9:15” on a bathroom stall; marking “Don’t Belle” on a bathroom stall; keying “Ready?” on Plaintiff’s car; marking “September 15” on a bathroom stall; and marking “Belle” with a. slash through it on a bathroom stall. These fourteen other incidents have no implicit or explicit sexual or gender, connotations, and do not provide any indication that they were related to sex or gender.
Plaintiff contends that because the harassed) used a gender-specific term on one occasion — i.e. keying “cunt” into Plaintiffs car — a jury could reasonably infer that the remaining fourteen incidents of threats and bullying were also “based upon sex.” Plaintiff points to a number of cases for the proposition that “if it reasonably could be inferred that [seemingly gender neutral conduct] was [actually] related to gender ... then it is for the trier of fact to decide whether such an inference should be drawn.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir.1999); Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir.2005) (“[W]hen a plaintiff introduces evidence of both gender-based and gender-neutral harassment, and when a jury, viewing the, evidence in context, ‘reasonably could view all of the alleged harassing conduct ... as the product of sex and gender hostility,’ then ‘it is for the fact finder to decide whether such an inference should be drawn.’” (quoting O’Shea, 185 F.3d at 1102, 1097)); Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 614 (1st Cir.2000) (“Alleged conduct that is not explicitly racial iri nature may, in appropriate circumstances, be considered along with more overtly discriminatory conduct in assessing a Title VII harassment claim.”).
That is not the case here. Plaintiff has identified the use of only one gender-specific, term on one occasion over the course of. over a year of gender-neutral bullying and threats. On this record, and without more, a fair-minded jury could not reasonably infer that the bullying and threats were sexual in nature or based upon Plaintiffs gender. See, e.g., Frazier, 276 F.3d at 67 (affirming dismissal where plaintiff had “not alleged facts from which it reasonably can be inferred that [the school discipline matron’s conduct, including peering at plaintiff through a crack in á bathroom stall as plaintiff was relieving herself and continually leering, scowling, and pointing at plaintiff] was óf a sexual nature or based on [plaintiffs] sex”); Morgan v. Town of Lexington, No. 14-13781-DJC, 138 F.Supp.3d 82, 93-95, 2015 WL 5634463, at *8-9 (D.Mass. Sept. 24, 2015); Patenaude v. Salmon River Central Sch. Dist., No. 3:03-CV-1016, 2005 WL 6152380, at *6 (N.D.N.Y. Feb. 16, 2005) (“Without question, Plaintiff was treated in a despicable and unacceptable manner by other students. That said, however, there is insufficient evidence in the record before the Court suggesting that Plaintiff was harassed by others students because she was female.”).
. As stated above, it is Plaintiffs burden to establish “that the conduct at issue was not merely tinged with offensive sexual connotations, but in fact constituted discrimination because ... of sex.” Id. at 66 (internal quotation marks and citations omitted); see also id. (“Discrimination on the basis of sex is the sine qua non of a Title IX sexual harassment case.”). Because no fair-minded jury could reasonably find that Plaintiff was discriminated against based upon sex, summary judgment is granted on Count I.
B. Count II: Section 1983 Substantive Due Process
In Count II, Plaintiff asserts a claim against Defendants under 42 U.S.C. § 1983, alleging that Defendants violated
Under the first exception, the Supreme Court has recognized that when the State creates a “special relationship” with an individual by taking the individual into custody, the State assumes a constitutional duty of care. See DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998 (“[W]hen the State takes a person into custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”). “[T]his relationship, and thus constitutional duty, may exist when the individual is incarcerated or is involuntarily committed to the custody of the state.” Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir.2005). Plaintiff does not rely on the so-called “special relationship” theory in this case and, in any event, the courts to decide.the question have held that schools do not maintain the type of custodial relationship over their students envisioned by DeShaney. See, e.g., D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1371-72 (3d Cir.1992). (en banc), cert. denied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.1997) (en banc); Doe v. Claiborne Cnty., 103 F.3d 495, 510 (6th Cir.1996); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir.1990).
The second exception has been referred to as the “state-created danger” theory. In DeShaney, - the Supreme Court reasoned that:
While the State may have been aware of the dangers that [the child] faced in -the . free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. [By returning the child to his abusive father, the State] placed him in no worse position than that in which he- would have been had it not acted at all.
DeShaney, 489 U.S. at 201, 109 S.Ct. 998. From this reasoning, some courts have recognized that a constitutional duty to protect might arise when a “government employee, in the rare and exceptional case, affirmatively acts to increase the threat of harm to the claimant or affirmatively prevents the individual from-receiving assistance.” Frances-Colon v. Ramirez, 107 F.3d 62, 64 (1st Cir.1997). Courts that have recognized this theory have required that
Here, Plaintiff has not provided evidence that Defendants engaged in any 'affirmative act (as opposed to a failure to act) that created or enhanced the danger posed to Plaintiff by the student harassers. Rather, the conduct at issue is Defendants’ inaction, including failure to. effectively investigate, intervene, and prevent, harm to Plaintiff. See, e.g., Nabozny v. Podlesny, 92 F.3d 446, 460 (7th Cir.1996) (no state-created danger where school: turned a “deaf ear” to known harassment of student by another student); Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir.1994) .(no state-created danger where school employees ignored warnings that a student' had threatened violence against plaintiffs son on school grounds and son was subsequently shot); D.R. by L.R., 972 F.2d at 1373-76 (no state-created danger where school failed to investigate and prevent repeated sexual assault of student by another student).
In opposing summary judgment, Plaintiff points to evidence that after Assistant Principal Weinstein allegedly interviewed students in spring 2012 regarding the bullying, Weinstein discarded his notes upon his retirement instead of passing his notes on .to his successor. Although Weinstein’s act of discarding his notes may have hampered the school’s investigation, there is no evidence that the school placed Plaintiff in a more dangerous position .than had the school not acted at all — i.e. had the school not interviewed or investigated at all. See DeShaney, 489 U.S. at 201, 109 S.Ct. 998 (reasoning that by returning a child to his abusive father, the State “placed [the child] in no worse position than that in which he would have been had it not acted at all”). Although the school’s investigation may have been ineffective, there is no evidence that the school’s investigation increased or enhanced the danger to Plaintiff posed by the harassers. Plaintiffs § 1983 claim therefore fails on the ground that Plaintiff has not provided evidence that Defendants owed Plaintiff a constitutional duty to protect her from student harassment.
“Even if ... the state plays a role in the creation or enhancement of danger, under a supposed state created danger theory, there is a further onerous requirement that the plaintiff must meet in order to prove a constitutional violation: the state actions must shock the conscience of the court.” Rivera, 402 F.3d at 35; Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir.1999) (“Outside of a few narrow categories, ... this means conduct that is truly outrageous, uncivilized,' and intolerable,”). “The burden to show state conduct that ‘shocks the conscience’ is extremely high, requiring ‘stunning evidence of arbitrariness and caprice’ that extends beyond ‘[m]ere violations of state law, even violations resulting from bad faith’ to ‘some
Here, Defendants’ conduct does not approach the “extremely high” standard required for behavior that shocks the conscience. The undisputed evidence shows that Defendants undertook some measures to address Plaintiffs harassment. Defendants’ response to the bullying and threats may well have been unreasonable and ineffective in some respects. For instance, Defendants could have made more efforts to communicate with faculty, take Plaintiffs complaints and emotional distress seriously, and preserve documentation of them investigation. Defendants’ response, however, cannot be characterized as “so egregious, so outrageous, that it may fairly be. said to shock the contemporary conscience.” Rivera, 402 F.3d at 36. Compare Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1076-77 (11th Cir.2000) (holding that school coach’s conduct shocked the conscience where coach intentionally hit football player in the head with a metal lock and knocked out his eye), and Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796-97 (8th Cir.1998) (finding substantive due process violation where officer raped woman in connection with car stop), with Hasenfus, 175 F.3d at 72 (holding that school’s failure to take steps to prevent student’s attempted suicide was “not even close to violating this outrageousness standard”), and Abeyta v. Chama Valley Indep. Sch, Dist., 77 F.3d 1253, 1258 (10th Cir. 1996) (finding no substantive due process violation where teacher, inter alia, “turn[ed] a deaf ear” to harassment of student by other students), mid Smith v. Guilford Bd. of Educ., 226 Fed.Appx. 58, 62 (2d Cir.2007) (“Defendants’ failure to respond to the harassing and bullying to which Jeremy was subjected ... while highly unfortunate, does not rise to the level of.‘egregious conduct.. so brutal and offensive to human dignity as to. shock the conscience.’ ”). Plaintiffs § 1983 claim therefore fails on, two independent grounds.
Finally, in opposing summary judgment on her § 1983 claim, Plaintiff contends that Assistant Principal Weinstein engaged in spoliation of evidence when he discarded his interview notes near the time of his retirement. Based on this alleged spoliation, Plaintiff asks the court to indulge an adverse inference for purposes of summary judgment that Weinstein discarded his notes “out of a sense that the document’s contents hurt his position.” Mem. Opp'n Mot. Summ. J. 31-32 [#543 (quoting Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 177 (1st Cir.1998)).
“Where a proper eVidentiary foundation has been laid, ‘a trier of fact may (but need not) infer from a party’s obliteration of a document relevant to a litigated issue that the contents of the document were unfavorable to that party.’ ” Booker v. Mass. Dep’t of Pub. Health, 612 F.3d 34, 45 (1st Cir.2010) (quoting Testa, 144 F.3d at 177). “This permissive negative inference springs from the eommonsense notion that a party who destroys a document ... when facing litigation, knowing the document’s relevancy to issues in the case, may well do so out of a sense that the document’s contents hurt his position.” Testa, 144 F.3d at 177. “Before an adverse inference can arise, the sponsor of the inference must lay an evi-dentiary foundation, proffering evidence to show that the party who destroyed the document ‘knew, of (a) the claim (that is, the litigation or the potential for litigation), and (b) the document’s potential relevance to that claim.’” Booker, 612 F.3d at 46 (quoting Testa, 144 F.3d at 177).
Unfortunately, I deemed it best to destroy my disciplinary, records, except what I reported on X2, which included, suspensions, etc. Perhaps if it would help, maybe I could reconstruct some things with you and Scott [Camilleri]. My main interaction, was the one in which Eva and [Plaintiff] attacked me verbally. Otherwise I was simply reportage [sic] of 2 keying incidents and 2 bathroom wall incidents, but I don’t’ have dates or further info on them. So, I can meet with you and Scott [Camilleri], but I can’t provide written documentation.
PL’s Ex. H. Thus, for purposes of summary judgment the court will assume that Weinstein destroyed notes regarding his investigation .in spring 2012, including notes regarding his alleged student interviews, at a time when- he knew of the potential for litigation.
Even assuming that Weinstein engaged in spoliation, however, an adverse inference would not save Plaintiffs § 1983 claim. See Kronisch v. United States, 150 F.3d 112, 128 (2d Cir.1998) (‘We do not suggest that the destruction of evidence, standing alone, is enough to allow a party who has produced no evidence — or utterly inadequate evidence — in support of a given-claim to survive summary judgment oh that claim.”). “[A]t the margin, where the innocent party has produced some (not insubstantial) evidence in support of his claim, the intentional destruction of relevant evidence by the opposing party may push a claim that might not otherwise survive summary judgment over the line.” Id.; Byrnie v. Town of Cromwell, 243 F.3d 93, 110 (2d Cir.2001); see also Nation-Wide Check Corp. v. Forest Hills Distrib., 692 F.2d 214, 218-19 (1st Cir.1982) (“The issue before the court was not whether the destruction was sufficient, standing alone, to warrant an adverse inference about the documents’ contents; it was simply whether the destruction was at all relevant to the tracing issue, and if so, whether it was sufficiently probative in conjunction with other evidence to support the tracing conclusion.” (emphasis added)).
Plaintiffs § 1983 claim is not “close” or “at the margin.” See Kronisch, 150 F.3d at 128; Byrnie, 243 F.3d at 110. Rather, Plaintiff has presented no evidence as to an essential element of her legal claim— that is, that the school owed Plaintiff a constitutional duty to protect her from student harassers under either the “special relationship” or “state-created danger” exceptions to DeShaney. As to the former exception, Plaintiff has not asserted the special relationship theory in this casé and, in any event, the courts to decide the question have rejected the special relationship theory in the school context. As to the latter exception, Plaintiff has not presented evidence of an affirmative act by the school that created or enhanced danger to Plaintiff such that the school placed Plaintiff in a more dangerous position than had the school not acted at all. The most a jury reasonably could infer from Weinstein’s act of discarding his interview notes is that Weinstein’s interviews were cursory, that perhaps the interviews revealed unpursued leads, or even that the interviews did not
C. Exercise of Supplemental Jurisdiction
Defendants ask the court to decline to exercise supplemental jurisdiction over the remaining state-law claims. Under 28 U.S.C. § 1367(c), “[t]he district court may decline to exercise supplemental jurisdiction over a claim” if “the district court has dismissed all claims over which it has original jurisdiction.” “Whether a court should decline supplemental jurisdiction depends on a ‘pragmatic and case-specific evaluation of a variety of considerations,’ including ‘the interests of fairness, judicial economy, convenience, and comity.’ ” Desjardins v. Willard, 777 F.3d 43, 45 (1st Cir.2015) (quoting Camelio v. Am. Fed’n, 137 F.3d 666, 672 (1st Cir.1998)). “As a general principle, the unfavorable disposition of a plaintiffs federal claims at the early stagés of a suit . . . will trigger the dismissal without prejudice of any supplemental state-law claims.” Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.1995).
In considering the totality of the circumstances, the court concludes that the interests of fairness, judicial economy, and convenience weigh in favor of resolving the state-law claims. The parties have been litigating this case for over two years, and the discovery period closed months before Defendants filed for summary judgment. Moreover, the state-law questions raised in Plaintiffs claims are not so novel or complex “as to warrant the added time and expense inherent in [re-filing in] state court.” See Senra v. Town of Smithfield, 715 F.3d 34, 41 (1st Cir.2013); see also Tomaiolo v. Mallinoff, 281 F.3d 1, 11 (1st Cir.2002) (finding that exercise of supplemental jurisdiction “furthered. judicial economy” where “all claims arose from the same core of facts”). The court will therefore exercise supplemental jurisdiction.
D. Count III: Intentional Infliction of Emotional Distress
In Count III, Plaintiff brings a claim for intentional infliction of emotional distress against the Individual Defendants in their official and individual capacities. A suit against public officials in their official capacities is a suit against the government entity itself. Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir.2005). The Individual Defendants in their official capacities move for summary judgment on the ground that public entities are immune from liability
The MTCA provides a limited waiver of sovereign immunity for certain tort claims against public entities. See Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 475 N.E.2d 727, 734 (1985). Under the MTCA, however, public entities remain immune from “any claim arising out of an’intentional tort ____” Mass. Gen. Laws ch. 258, § 10(c). Accordingly, the court will allow summary'judgment on Count III for the Individual Defendants in their official capacities.
The Individual Defendants in their individual capacities move for summary judgment on Count III on the ground that Plaintiff has not presented evidence that they engaged in “extreme and outrageous” conduct. To prevail on a claim for intentional infliction of emotional distress, a plaintiff must establish that the defendants’ conduct was “extreme and outrageous.” Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 681 N.E.2d 1189, 1197 (1997). Extreme and outrageous conduct is behavior" that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,- and utterly intolerable in a civilized community.” Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72, 82 (1987) (internal quotation marks and citation omitted). “[Liability cannot be predicated upon ‘mere insults, indignities, [or] threats ... ,’ nor even is it enough .‘that the defendant has acted vrith an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.’ ” Id. (quoting Restatement (Second) of Torts § 46, cmt. d (1965)). “The standard for making a claim of intentional infliction of emotional distress is very high.” Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir.1996).
“Even putting as harsh a face on [Defendants’] actions” as the facts reasonably allow, Tetrault, 681 N.E.2d at 1197, Defendants’ response was not, as a matter of law, so extreme and outrageous as to constitute intentional infliction of emotional distress. As stated above, Defendants made some efforts to respond to Plaintiffs harassment. Defendants, for instance, met with Plaintiff and her parents, offered Plaintiff an alternative parking lot, contacted and coordinated with police, assigned monitors to the parking lot, assigned monitors to shadow Plaintiff in school, implemented a plan for Plaintiff’s friend to accompany her to the restroom while in the Rivers and Revolutions Program, installed cameras, collected and visually compared writing samples, asked teachers to read messages in first block classes to elicit tips," and sent “ConnectEd” messages to the school community regarding at least some incidents which included an email address for anonymous reporting of tips. Additionally, Principal Badalament, as well as.Detective Camil-lei-i, spoke with at least some students who were the subject of tips.
E. Count TV: Negligent Infliction of Emotional Distress,
In Count IV, Plaintiff brings a claim for negligent infliction of emotional distress against the Individual Defendants in their official and individual capacities. The Individual Defendants in their official capacities move for summary judgment on the ground that Plaintiff failed to make proper presentment of her claim prior to filing suit as required by the MTCA.
The MTCA provides that “[a] civil action shall not- be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing, to the executive officer of such public employer within two years after the . date upon which the cause of action arose ,” Mass. Gen. Laws ch. 258, § 4. Under this provision, “the plaintiff must make the required presentment prior to the commencement of suit.” Haley v. City of Bos., 657 F.3d 39, 54 (1st Cir.2011). A presentment letter must “identify[ ] the legal basis of a plaintiffs claim.” Rodriguez v. City of Somerville, 472 Mass., 1008, 33 N.E.3d 1240, 1244 (2015) (internal quotation marks and citation omitted). “If proper presentment is not made within the time allotted, the plaintiffs complaint is, subject to dismissal.” Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 475 N.E.2d 727, 733 (1985). Plaintiff has not provided evidence that she made proper presentment before filing suit. Accordingly, Count IV against the Individual Defendants in their official capacities is subject to dismissal.
Even if Plaintiff had complied with the presentment requirements, the Individual Defendants in their official capacities are immune from. liability on Count IV. Under the MTCA, a public employer is immune from “any claim based on an act or failure to act- to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct .of a third person, which is not originally caused by the public employer or any other person acting on
Here, Plaintiff has not presented evidence of an affirmative act (as opposed to a failure to act) by the Individual Defendants that originally caused Plaintiff to suffer harassment. See, e.g., Doe v. Old Rochester Reg'l Sch. Dist., 56 F.Supp.2d 114, 121 (D.Mass.1999) (“Even if the School District ignored the Does’ complaints about harassment by other students, "there are no allegations that it ‘originally caused’ the students to harass Jane Doe.”); Brum, 704 N.E.2d at 1155-56 (holding that school officials were immune from suit claiming they failed to protect student from an in-school stabbing). Thus, even if Plaintiff had made presentment, summary judgment is proper on Count IV for the Individual Defendants in their official capacities.
Additionally, the Individual Defendants in their individual capacities move for- summary judgment on Count IV on the ground that Plaintiffs negligence claim is barred by the MTCA. The MTCA shields public employees from personal liability for .negligent conduct occurring within the scope of their employment. See Mass. Gen. Laws ch. 258, § 2 (“[N]o such public employee ... shall be liable for any injury .,.. caused by his negligent or wrongful act or omission while acting within the scope of his office or employment.”); Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir.2003). Because the Individual Defendants’ allegedly negligent conduct occurred within the scope of their employment, Plaintiffs claim against the Individual Defendants in their individual capacities is barred and summary judgment is granted.
F. Count V: Massachusetts Civil Rights Act
In Count V, Plaintiff brings á claim against all defendants under the Massachusetts Civil Rights Act (“MCRA”). The Town, School District, and Individual Defendants in their official capacities move for summary judgment on the ground that municipal entities are not subject to liability under the MCRA. “[A] municipality is not a ‘person’ covered by the [MCRA].” Howcroft v. City of Peabody, 51 Mass.App.Ct. 573, 747 N.E.2d 729, 744 (2001); see also Kelley v. LaForce, 288 F.3d 1, 11 n. 9 (1st Cir.2002). Accordingly, summary judgment is granted for the Town, School District, and Individual Defendants in their official capacities on Count V-
The Individual Defendants in their individual capacities also move for summary judgment on the ground that there is no evidence that they interfered with Plaintiffs rights “by threats, intimidation or coercion.” The MCRA prohibits persons from interfering with federal and state rights “by threats, intimidation or coercion.” Mass. Gen. Laws ch. 12 § 11H. “The Massachusetts legislature intended that even a direct deprivation of a plaintiffs rights would not be actionable under the act unless it were accomplished by means of one of these three constraining elements.” Nolan v. CN8, 656 F.3d 71, 77 (1st Cir.2011) (internal quotation marks and citation omitted). “ ‘Threat’ in this con
Plaintiff has not provided evidence from which a jury could find that Defendants violated Plaintiff’s federal or state rights. See Dean v. City of Worcester, 924 F.2d 364, 370 (1st Cir.1991) (affirming summary judgment on MCRA claim where plaintiff failed to establish violation of a federal or state right). Nor has Plaintiff provided evidence that Defendants interfered with any such right “by threats, intimidation or coercion.” Although there is evidence that the harassers used threats, intimidation, or coercion, there is no evidence that the Defendants did'so. Summary judgment is therefore granted on Count V.
G. Count VI: Massachusetts Declaration of Rights
In Count VI, Plaintiff alleges that Defendants violated her right to substantive due process under Article 10 of the Massachusetts Declaration of Rights. Plaintiff has not argued or otherwise demonstrated that the Massachusetts Declaration of Rights provides greater substantive due process protections than the United States Constitution in this context. See, e.g., Christensen v. Kingston Sch. Comm., 360 F.Supp.2d 212, 215 n. 1 (D.Mass.2005) (treating federal and state substantive due process claims identically where plaintiff had not argued “that the Massachusetts Declaration of Rights provides greater substantive due process protections in this context”). Therefore, for the reasons articulated above in relation to Plaintiffs federal due process claim, the court grants summary judgment for Defendants on Count VI.
IV. Conclusion
For the above-stated reasons, Defendants’ Motion for Summary Judgment [#34] is ALLOWED.
IT IS SO ORDERED.
. Unless otherwise indicated, the following facts are taken from the parties’ Local Rule 56.1 statements and responses, and are undisputed or not properly disputed for purposes of summary judgment. See Fed. R. Civ. P. 56(c), (e)(2). In ruling on summary judgment, the court properly construes the facts, as supported by the record, m the light most favorable to Plaintiff, the nonmovant. See Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.2008).
, It is unclear from the parties', statements of facts whether the Individual Defendants had notice (1) that students had left an attacking voicemail message on Plaintiff’s phone during her sophomore year, (2) that "ha-ha” was keyed on Plaintiff's car while parked near a restaurant on May 30, 2012, and (3) that "Ready?” was keyed on Plaintiff’s car while parked overnight at a friend's house ón August 19, 2012.
. Principal Badalament subsequently testified that "it was. my impression that not enough had been done and that’s why I took over” and there "could have been more discrete or concrete things put in place to ensure Belle's safety.”, Pl.’s Facts ¶ 133; .Badalament Dep. ' 60-61 in Pl.’s Ex. E. In what appears to be a timeline prepared for litigation, Principal Ba- ■ dalament states in regard to Weinstein’s investigation: "Generally speaking from what I later learned it was not handled well. I accept full responsibility for his actions or lack thereof.” Pl.’s Facts ¶ 135; Pl.’s Ex H (TOCC001039). .Superintendent Rigby testified that she did not know whether Weinstein had been filling out forms reporting the incidents and was "Concerned.” Pl.'s Facts ¶ 134; Rigby Dep. 107 in Pl.’s Ex. G.
. Detective Camilleri’s police report reflects that this message was sent. Camilleri Report, Compl. Ex. 11 in Defs.’ Ex. B. Plaintiff disputes this fact by pointing to Coach McGloin’s testimony that: "[W]hen the incident happened in June the year before, one of -our biggest issues was that until the day I was in school, no formal announcement had been made , to any of the teachers or coaches or maintenance.” McGloin Dep. 73 in Pl.’s Ex. I. It is unclear what'- Coach McGloin means, however, by ‘‘until the day I was in school.”
. The court need not address Defendants’ three alternative grounds for summary judgment on Plaintiff's Title IX claim.
. In her post-hearing brief, Plaintiff describes the constitutional right at stake as the Fourteenth Amendment “right to education.” ' However, "[p]ublic education is not a 'right’ granted to individuals by the Constitution.” Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 72 L.Ed,2d 786 (1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) ("Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any' basis for saying it is implicitly so protected.”). In accordance with Plaintiff’s Complaint, the court will construe the right -at issue as the Fourteenth Amendment substantive due process right to bodily integrity.
. Moreover, the Individual Defendants in their individual capacities are entitled to qualified immunity on the ground that it was not clearly established that Defendants created a danger in this case sufficient to give rise to a duty to protect under DeShaney or that Defendants’ behavior shocks the conscience. See, e.g., Melendez-Garcia, 629 F.3d at 37 (affirming qualified immunity on failure-to-protect theory of substantive due process).
. “It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery .....” Caputo v. Bos. Edison, Co., 924 F.2d 11, 14 (1st Cir.1991) (applying Massachusetts law) (quoting Restatement (Second) Torts § 46 ,cmt. h (1965)); see, e.g., Roman v. Trs. of Tufts Coll., 461 Mass. 707, 964 N.E.2d 331, 342 (2012) (affirming summary judgment on claim for intentional infliction of emotional . ■ distress on the ground that defendant’s conduct did “not approach the type of behavior that could be considered ‘extreme -and outrageous’ ”).