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Doe v. Torrington Board of Education

United States District Court, D. Connecticut

March 30, 2016

JOHN DOE, Plaintiff
v.
TORRINGTON BOARD OF EDUCATION, CHERYL KLOCZKO, JOANNE CREEDON, CHARLES McSPIRIT, MICHAEL McKENNA, DANIEL DUNAJ, JOHANNAH DEZURIK, GERALD CARBONE and JAMES DZIEKAN Defendants.

RULING ON MOTION TO DISMISS

MICHAEL P. SHEA, U.S.D.J.

Plaintiff John Doe filed a fourteen-count amended complaint against the Torrington Board of Education and several of its employees alleging violations of the following federal laws: the Due Process Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 (Counts One and Two); the Equal Protection Clause of the Fourteenth Amendment under § 1983 (Counts Three and Four); Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (“Section 504”) (Count Five); Title II of the Americans with Disabilities Act, 42 U.S.C. §12132 (“ADA”) (Count Six); and Title IX of the Higher Education Act of 1972, 20 U.S.C. § 1681 (“Title IX”) (Count Seven). Defendants move to dismiss Doe’s First Amended Complaint (“FAC”). (ECF Nos. 23 and 28.) The Court GRANTS Defendants’ motions to dismiss. The federal claims-Counts One through Seven-are dismissed with prejudice because they fail to allege facts that make it plausible that the Defendants violated the federal laws listed above. The state law claims-Counts Eight through Fourteen-are dismissed without prejudice to refiling them in state court.

I. BACKGROUND

The following factual allegations are taken from the FAC and are accepted as true for the purpose of deciding Defendants’ motions to dismiss.

A. Factual Background

Doe is a resident of Connecticut. (FAC, ECF No. 22 ¶ 1.) He was diagnosed with a learning disability that qualified him for services and accommodations under the Individuals with Disabilities Education Act (“IDEA”) and Section 504.[1] (Id. ¶ 16.) Doe attended Torrington High School (“THS”) from August 2011 until April 5, 2013. (Id. ¶ 15.) From April 23, 2013, until July 2013, instead of attending THS, Doe received three hours of tutoring per day at the office of defendant Torrington Board of Education (the “Board”). (Id.)

Defendant Cheryl Kloczko was Superintendent of the Board during the relevant time period. (Id. ¶ 3.) Doe alleges that, “[a]s Superintendent, Kloczko was the individual primarily responsible for . . . formulating and implementing policies and ensuring that the Board followed the law, including, but not limited to, equal access to education and equal treatment for all students, and was the ultimate authority and decision-maker of the Board.” (Id.) Defendant Joanne Creedon was the Principal of THS during the relevant time period. (Id. ¶ 4.) As Principal, Creedon was responsible for “the welfare of the students” and “the implementation of policies and procedures governing the schools.” (Id.) Doe alleges that Creedon failed to “ensure that staff were properly trained regarding their obligations to report[] and address bullying.” (Id.) Defendant Charles McSpiritt was Vice Principal of THS during the relevant time period, and was responsible for overseeing students’ welfare, investigating students’ misbehavior, and “disciplin[ing] students.” (Id. ¶ 5.) Michael McKenna, as the Athletic Director at THS during the relevant time period, was responsible for THS sports programs, including drafting and implementing polices on discipline and safety of student-athletes. (Id. ¶ 6.) Defendant Dan Dunaj was the Head Football Coach at THS during the relevant time period, and was responsible for “ensur[ing] the safety and well-being of each of his players.” (Id. ¶ 7.) Defendant Johanna DeZurik, as a guidance counselor at THS, was responsible for “providing assistance, planning, and support for students . . . .” (Id. ¶ 8.) Defendant Gerard Carbone was a special education teacher for Doe. (Id. ¶ 9.) Carbone was also Doe’s special education case manager and, as such, was responsible for checking on Doe’s educational and social progress as well as scheduling Planning and Placement Team (“PPT”) Meetings and performing other administrative tasks. (Id.) Finally, Defendant James Dziekan was “a school social worker assigned to counsel . . . Doe.” (Id. ¶ 10.) Doe alleges that Creedon, McSpiritt, McKenna, Dunaj, DeZurik, Carbone, and Dziekan personally participated in and/or directed actions that they knew or should have known violated Doe’s rights under the U.S. Constitution, federal law and state law. (Id. at ¶¶ 4-10.)

1. Doe’s Freshman Year (Fall 2011-Spring 2012)

In October of 2011, approximately two months after Doe joined the THS football team in August “Student A”[2] threw Doe down to the floor of the locker room, causing his glasses to break. Student A then took Doe’s hat and rubbed it on Student A’s genitals. (Id. ¶¶ 18-19.) Doe reported the incident to school officials, and Student A was suspended for what Doe alleges was fewer than 10 days. (Id. ¶ 20.) Doe “was assured that his disclosure to school officials would remain private, however, students and staff on the football team learned” that Doe had reported the incident to school officials “and began to retaliate against him.” (Id.) McSpiritt provided Principal Creedon with a written report about the incident, and thereafter, continued to inform Principal Creedon of Doe’s allegations of bullying and harassment. (Id. ¶ 21.) Doe alleges, upon information and belief, that “Principal Creedon personally approved McSpiritt’s actions and inactions.” (Id. ¶ 22.)

In late October or early November of 2011, Student B, a player on the football team, tackled Doe and “said he wanted to fight” Doe. (Id. ¶ 23.) Doe alleges that “[b]ecause prior reports were not handled properly by staff and coaches, and because coaching staff perpetrated, condoned, and acquiesced to retaliation between team members, the Plaintiff did not feel safe to report the incident to anyone immediately after it occurred.” (Id.) Doe’s mother reported the assault to administrators at some later date. (Id.)

In January of 2012, Doe suffered an injury that limited his ability to play football. (Id. ¶ 25.) Doe alleges that “[h]e was ridiculed both by coaches and students, and called a ‘pussy, ’ ‘bitch, ’ and ‘baby’” and “[t]he football coaches, led by Dunaj, participated in, encouraged, and condoned this harassment.” (Id.) The amended complaint does not allege that Doe reported this harassment to school officials.

In the spring of 2012, Doe was at track practice when Student C, who, like Doe, was a member of both the track and football teams, threw Doe to the ground and threw rocks in his face, which caused Doe to swallow a rock. (Id. ¶ 26.) Doe did not feel safe reporting the incident to school officials; Doe’s mother reported it to administrators at some later date. (Id.) Doe alleges that “[f]rom that point until the end of his freshman year, [he] was assaulted by Student B and/or C, or other students nearly every day.” (Id. ¶ 27.)

Also in the spring of 2012, Student D, a football player, hit Doe on the back of the neck with a “karate chop.” (Id. ¶ 30.) Doe “then defended himself by executing the same on Student D.” (Id.) Both Doe and Student D received In-School Suspension (“ISS”) as punishment. (Id.) Dunaj told the football team that Doe received ISS and “disciplined the entire team for the Plaintiff’s ISS by forcing all players to run ‘gassers, ’ or a series of sprinting exercises.” (Id. ¶ 31.) Doe alleges Dunaj and the other football coaches were aware that “requiring the entire team to run gassers as a result of one student’s discipline would encourage players to retaliate within the team.” (Id. ¶ 32.) After practice, other football players, including Students B and E, sought out Doe and “retaliated against him by repeatedly striking him on the neck.” (Id. ¶ 33.) The amended complaint does not allege that Doe reported these assaults to school officials.

2. August 2012 Incident

In August of 2012, Doe and several others were playing football in a park when Student B committed a sexual assault on Doe in the presence of several other students. (Id. ¶ 34.) Again, Doe did not feel safe reporting the incident immediately after it occurred. (Id. ¶ 35.)

3. Sophomore Year (Fall 2012-Spring 2013)

Beginning in the fall of 2012, Doe alleges that other students repeatedly harassed him in class, calling him a “faggot” and a “fat ass.” (Id. ¶ 36.) An unnamed teacher “heard the harassment and failed to discipline the other students.” (Id.) On September 12, 2012, DeZurik left a voicemail for Doe’s mother in which she indicated that she had spoken to Doe and was aware that he was being harassed. DeZurik told Doe’s mother that “she would not take direct action because the Plaintiff declined to offer names.” (Id. ¶46.) Doe “began to stay home from school out of fear for his physical safety and because of severe anxiety related to the bullying that was occurring at school. He was absent numerous days and his grades began to drop.” (Id. ¶ 47.)

On November 12, 2012, THS convened a PPT meeting-at the request of Doe’s mother-to address, among other things, the “severe and ongoing patterns of bullying, sexual harassment, and retaliation by students and the impact of this bullying on” Doe. (Id. ¶ 48.) During this meeting, Doe’s mother informed school officials and/or referenced several of the previous incidents involving Doe. (Id.) Also during the meeting, Carbone “became visibly agitated with and angry” at Doe for refusing to name the harassers. (Id. ¶ 49.) Carbone told Doe, “I am sick of hearing about phantom bullies.” Doe then “reluctantly provided names of some of the perpetrators.” (Id. ¶ 50.)

On January 18, 2013, the school convened another PPT meeting-also at the request of Doe’s mother-for the same reasons as the first meeting. (Id. ¶ 51.) Doe’s mother again talked about several previous incidents of bullying against Doe. (Id.) Doe’s private counselor attended this PPT meeting “to express her concerns regarding the harassment that was occurring and the lack of response by the school.” (Id. ¶ 52.) During the meeting, DeZurik, McSpiritt, and Carbone characterized the harassment as “everyday banter between the boys, back and forth.” (Id. ¶ 53.) Doe’s counselor, his mother, and his grandmother objected to this characterization and “voiced their disagreement.” (Id.) The PPT decided that Doe would receive 30 minutes of counseling per week with Dziekan “to assist him in dealing with issues related to his peers because of his ‘sensitivity.’” (Id. ¶ 54.) The PPT also planned for Doe to “leave his resource study hall early to avoid being harassed for his status as a student in need of special education services.” (Id.) Doe’s mother stated that she believed this “safety plan” was insufficient, and disagreed that Doe’s issues arose from his sensitivity. (Id.) Doe signed a release on September 13, 2012, to allow Dziekan to communicate with Doe’s private counselor about the harassment. (Id. ¶ 55.) Dziekan, however, never contacted the private counselor, despite Doe’s mother’s request that he do so. (Id.)

On March 17, 2013, Doe’s mother attended an “attendance appeal meeting” to address Doe’s attendance issues. (Id. ¶ 58.) During the meeting Doe’s mother “pleaded for help to end the bullying, assault and harassment so that the Plaintiff could return to school.” (Id.) On that same day, Student F, pushed Doe in the chest and said, “What the fuck, gay boy.” (Id. ¶ 59.) Doe pushed Student F away from him in self-defense. (Id.) Teacher Eric Gamari witnessed this incident, but dismissed it as mutual and did not discipline Student F. (Id.) The next day, Doe refused to go to school because of the bullying and harassment. (Id. ¶ 60.) Doe’s mother informed Carbone that Doe was afraid to go to school. (Id.) On March 20, Doe’s mother called Dziekan and informed him of the continuing bullying. (Id. ¶ 61.) Dziekan informed Doe’s mother that he had not met with Doe since the PPT two months earlier, as planned. (Id.)

At an unspecified time, after Doe “had missed significant time from his first period class due to his anxiety over bullying, Gamari asked, ‘Oh, you decided to get off your recliner and come here.’” (Id. ¶ 65.) Also during this time period, Creedon acknowledged to Doe’s mother and grandmother that she was aware that student athletes were left unsupervised for periods of time during which these assaults were occurring. (Id. ¶ 70.)

On April 1, 2013, Doe was in resource study hall with a paraprofessional, Dorrette Murphy. (Id. ¶ 62.) After Murphy opened the window blinds-making the inside of the classroom visible from the hallway-Doe “turned his desk to be shielded from view in order to avoid the ridicule of other students for requiring services for his special education needs.” (Id.) Seeing this, Murphy asked Doe, “What? Are you embarrassed? You should be embarrassed. About the only thing you should be embarrassed about is yourself. You are a hider.” (Id. ¶ 63.) Murphy’s statements “provoked other students to call Plaintiff a hider. She then suggested that the other students get paint and write the Plaintiff’s name on the window.” (Id.) Doe then asked whether he could leave class early according to the safety plan. (Id. ¶ 64.) In response, Murphy asked:

“Who arranged that? I wish I could leave 5 minutes early.” She then stated to the rest of the class, “Don’t you wish you could?” When the Plaintiff responded that his Guidance Counselor had given him permission, Murphy stated: “we should all go to our Guidance Counselors so we can leave early.”

(Id.) That afternoon at track practice, Students B and C cornered Doe, pushed him against a fence, and repeatedly punched him. (Id. ¶ 66.) Doe suffered from contusions and his shirt was ripped. (Id.) The following day, on April 2, Doe’s mother brought the ripped shirt to school and informed McSpiritt of the incident. (Id. ¶ 67.) Doe then “disclosed the perpetrators names.” (Id.) Later that day, the track coach, Michael Tyler, called Doe’s mother and told her that he believed that Doe had been embellishing ...


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