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Doe v. Torrington Board of Education

United States District Court, D. Connecticut

November 17, 2016

JOHN DOE, Plaintiff


          Michael P. Shea, U.S.D.J.

         Plaintiff John Doe asks the Court to reconsider its earlier dismissal and allow him to file a second amended complaint in this school bullying case. Doe presents newly discovered evidence to bolster his claim that Defendants-the Torrington Board of Education (the “Board”), head football coach Daniel Dunaj, and several other Board employees-violated his due process rights by placing him in danger of physical and sexual assault, hazing, and other harassment while he was a student at Torrington High School. As explained below, the motion for reconsideration (ECF No. 79) is GRANTED in part and DENIED in part. The Court will permit Doe to file a second amended complaint asserting a state-created danger claim against Dunaj only, on the basis of the newly discovered evidence. The Court also directed the parties to brief the question whether the case should be dismissed for failure to exhaust administrative remedies. Both parties argued that it should not, and the Court agrees.

         I. BACKGROUND

         The Court assumes familiarity with the factual allegations in this case, which are set forth in detail in its earlier ruling. (ECF No. 75 at 2-10.) As for the procedural history, on July 25, 2014, Doe's parent initiated a state administrative due process hearing, claiming that the Board had failed to provide Doe with a free and appropriate public education in violation of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. (“IDEA”), and Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (“Section 504”). (ECF No. 88-1 at 1.) Ten months later, on March 27, 2015, Doe filed a civil action in this court against the Board, football coach Daniel Dunaj, and seven other employees. (ECF No. 1.) On May 25, 2015, Doe's parent re-filed the state due process hearing (ECF No. 88-1 at 1), and on May 29, 2015, Doe filed a first amended complaint in this case. (ECF No. 22.)

         The first amended complaint brought several federal claims: violations of the Due Process Clause of the Fourteenth Amendment under 42 U.S.C. § 1983; the Equal Protection Clause of the Fourteenth Amendment under § 1983; Section 504; Title II of the Americans with Disabilities Act, 42 U.S.C. §12132; and Title IX of the Higher Education Act of 1972, 20 U.S.C. § 1681. (Id., Counts One through Seven.) It also included state law claims of negligence; negligent hiring, retention, and supervision; intentional infliction of emotional distress; negligent infliction of emotional distress; and violations of Conn. Gen. Stat. §§ 46a-64, 10-15(c), and 46a-58(a). (Id., Counts Eight through Fourteen.)

         On August 5, 2015, the parties agreed by letter that the state due process hearing officer had jurisdiction over the claims regarding the right to a free and appropriate education under the IDEA and Section 504, but not the alleged affirmative acts of discrimination. (ECF No. 39-1.) They agreed to bifurcate the two issues. (Id.) On September 10, 2015, Doe and the Board reached a resolution of the state administrative process via a settlement agreement. (ECF No. 88-1 at 1-4.) The settlement provided that the Board would pay $32, 500 for Doe's qualifying educational expenses. (Id. at 2.) Doe agreed to waive “all claims arising out of or in relation to the Student's educational program, ” but not the claims presented in this civil action. (Id. at 2-3.)

         On March 30, 2016, the Court granted Defendants' motions to dismiss, holding that Doe had failed to allege facts sufficient to state a claim as to the federal violations, and declining to exercise supplemental jurisdiction over the state law claims. (ECF No. 75.) On April 28, 2016, Doe filed a motion urging reconsideration of the substantive due process claim only, on the basis of newly discovered evidence and to prevent manifest injustice. (ECF No. 79).

         On October 3, 2016, the Court issued an order directing the parties to show cause why the case should not have been dismissed without prejudice for failure to exhaust claims under the IDEA. (ECF No. 86.) The parties responded on October 24, 2016, with both sides arguing that IDEA exhaustion was not required. (ECF Nos. 88, 89.)


         “The standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks and citation omitted.)


         a. State-Created Danger

         As explained in the Court's earlier ruling (ECF No. 75 at 12-15), [1] “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989). An exception to this general rule applies when the state “in some way had assisted in creating or increasing the danger to the victim.” Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008) (internal quotation marks and citation omitted). When “state officials communicate to a private person that he or she will not be . . . punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others, those officials can be held liable under section 1983 for injury caused by the misconduct” even if “none of the defendants are alleged to have communicated the approval explicitly.” Pena v. DePrisco, 432 F.3d 98, 111 (2d Cir. 2005). “A failure to interfere when misconduct takes place, and no more, is not sufficient to amount to a state created danger.” Id. at 110 (emphasis in original). And “in the context of school bullying and harassment, courts have held that schools have no duty under the due process clause to protect students from assaults by other students, even where the school knew or should have known of the danger presented.” Scruggs v. Meriden Bd. of Educ., 2007 WL 2318851, at *12 (D. Conn. 2007) (internal quotation marks omitted) (citing cases by the 3rd, 5th, 6th, 7th, 8th, and 10th Circuits). In addition, to establish a due process violation, a plaintiff must also show that the state actor's “behavior was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'” Matican, 524 F.3d at 155 (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)).

         In this case, the newly discovered evidence presented by Doe is sufficient to state a plausible claim that Dunaj, and Dunaj only, is liable for violating Doe's substantive due process rights under a theory of state-created danger. Specifically, the Department of Children and Families interviews attached to the motion for reconsideration (ECF No. 79-11) include allegations, albeit conflicting ones, that Dunaj encouraged or condoned student athletes' violent behavior, implicitly communicating that they would not be “punished, or ...

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