KARI A. DOOLEY, District Judge.
This action arises out of an assault on the minor Plaintiff at Enfield High School. The assault occurred during the school day and was perpetrated by a fellow student. The Plaintiff, by and through her parents and next friends, Jane and John Doe, brought this action against the Enfield Board of Education, Superintendent Jeffrey Schumann, Principal Andrew Longey and Vice Principal Connel Clark. The individual Defendants are sued in both their individual and official capacities. The Plaintiff brings five claims against the Defendants, though only two of those claims are implicated in the instant Motion to Dismiss — the Fourteenth Amendment Substantive Due Process claims set forth in Counts One and Two. Previously, the Court (Hall, J.),
The Court sets forth below the facts alleged at the time the Court dismissed the original claims. They are taken directly from the Court's prior ruling.
(Ruling at 2-4.)
In the Amended Complaint, the Plaintiff includes the following additional allegations regarding Emily Doe, Student A, and the conduct of the Defendants. As to Emily Doe, the Plaintiff alleges that at the time of the assault her functional age was approximately 11.2 years and her IQ was 80. With respect to Student A, the Plaintiff alleges, because he was "not a resident of Enfield, he was not entitled to attend Enfield Public Schools." The Plaintiff alleges that "Student A had a history of drug use and of dealing drugs, as well as a history of arrests for criminal conduct." As to the Defendants, the Plaintiff alleges that the Board "knowingly permitted Student A to attend Enfield High School." The Plaintiff further alleges that the Defendants allowed Student A to "remain in a general education setting, despite prior assaults and other criminal misconduct, without any restrictions or increased supervision." The Plaintiff alleges that the Defendants "affirmatively removed protections required under Board and school policies, such as supervision of the school hallways and working security cameras, that were put in place to protect students from danger, including Student A's propensity for misconduct." The Plaintiff alleges that "[a]t the time of the attack, the Defendants had disabled the security cameras looking over the hallway outside the entrance to the aforementioned boys' bathroom." Finally, as to Clark specifically, the Plaintiff alleges that "[t]he area where Student A dragged Emily Doe into the boys' bathroom was part of Defendant Connel Clark's assigned hall duty area"; that Clark "had willfully abandoned the area by the boys' bathroom, and/or willfully ignored signs that Student A was bringing Emily to the isolated location"; that Clark, at the time of the attack, entered, exited, and then reentered the boys' bathroom, "observ[ing] the two students in the same stall" and "ask[ing] why Emily was in the boys' bathroom in a manner that suggested that she had engaged in misconduct"; and that Clark "failed to assess Emily's safety, and instead suggested she was to blame for being in the bathroom, despite that he knew or should have known that Student A had a history of misconduct, and despite that he knew or should have known that Emily was a vulnerable student." The Plaintiff alleges that "Clark created a danger in which Student A isolated the plaintiff and raped her." The Plaintiff further alleges that Clark subsequently "made contradictory statements about what he saw when in the boys' bathroom that morning."
The Court does not reiterate the well-established standard for reviewing pleadings under Rule 8(a) as discussed in Ashcroft v. Iqbal, 5556 U.S. 662 (2009) and its progeny. Neither, with respect to the Fourteenth Amendment Due Process claim, does the Court reinvent the proverbial wheel. Judge Hall's decision thoroughly and accurately set forth the circumstances under which a state actor can be held liable for the violent conduct of a private actor.
(Ruling at 6-7.)
The Court first determined that the allegations did not support, as a matter of law, the type of "special relationship" required under the first DeShaney exception. (Ruling at 13.) Nonetheless, the Plaintiff raised this argument anew in her memorandum and at oral argument pressed this Court to find a "special relationship" arising out of the Plaintiff's unique vulnerabilities. However, this Court's review of the prior decision reveals that Judge Hall considered and rejected this argument and did not grant the Plaintiff leave to replead with respect to this claim. (Ruling at 7-13.) Thus, the Court's prior decision on this issue is law of the case.
"Although we have described the `law of the case [a]s an amorphous concept,' `[a]s most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Pepper v. United States, 562 U.S. 476, 506-07 (2011) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). Under the doctrine, courts should be loathe to revisit issues already decided absent cogent and compelling reasons. Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009). The purpose of the doctrine is to "maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit." Devilla v. Schriver, 245 F.3d 192, 197 (2d Cir. 2001). The doctrine has as much force with respect to the decisions of a coordinate court in the same case as to a court's own decisions. Bank of America v. Pastorelly-Cuseo, No. 3:17-CV-01666 (SRU), 2017 WL 4678184, at *2 (D.Conn. Oct. 17, 2017). In other words, "where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Virgin Atl. Airways, Ltd., v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964), cert. denied, 377 U.S. 934 (1964)).
However, while the doctrine "directs a court's discretion, it does not limit the tribunal's power." Pepper, 562 U.S. at 506-07. "Accordingly, the doctrine does not apply if the court is `convinced that [its prior decision] is clearly erroneous and would work a manifest injustice.' Agostini v. Felton, 521 U.S. 203, 236 (1997) (quoting Arizona, 460 U.S., at 618, n. 8, 103 S.Ct. 1382; alteration in original)." Id. The Court declines to revisit this issue and is persuaded that Judge Hall's thorough and searching decision was correct.
Judge Hall next determined that the allegations were insufficient to establish that the state had created the danger giving rise to the violation. The Court held: "Doe has not alleged facts sufficient to state a due process claim based on a state-created danger. . . . Doe is granted leave to replead her due process claim under the state-created danger exception if she can allege facts plausibly supporting an inference that the defendants implicitly communicated to Student A that he would not be punished or interfered with." (Ruling at 19.) The Court also concluded that the allegations were insufficient to establish that the defendants' conduct was egregious or outrageous, a co-requisite to either of the DeShaney exceptions. In granting leave to replead, the Court instructed that "Does must plead facts sufficient to plausibly support an inference that the defendants' actions were egregious and outrageous." (Ruling at 23.) The question then is whether she has done so.
As previously observed, "[T]he boundaries of the state created danger exception to DeShaney are not entirely clear, but the exception does require a government defendant to either be a substantial cause of the danger . . . or at least enhance it in a material way." (Ruling at 14) (Internal quotations and citations omitted). Liability under the stated-created danger theory turns on whether the state conduct contributing to the victim's injury was "affirmative," which can give rise to liability, or "passive," which cannot. Matican, 524 F.3d at 157. One way a state can be found to have affirmatively created or enhanced in a material way a victim's danger is where its agents communicate, explicitly or implicitly, to a third-party encouragement or official sanction of private violence. Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 429, 430 (2d Cir. 2009); see also Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (police officers gave a gun to a robbery victim and then transported him to the scene of the suspect's arrest where the victim then shot the suspect); Dwares, 985 F.2d at 99 (the state created the danger when police officers communicated to skinheads that "unless they got totally out of control they would not be impeded or arrested").This is the only theory of a state-created danger that the Plaintiff was afforded the opportunity to replead. The other four bases upon which she averred a state-created danger were found to be "the kind of passive conduct that
As to the implicit/explicit communication theory for state-created danger, the Court stated: "The Second Circuit has indicated that, in contrast to the special relationship exception, which relies on the relationship between the state and victim, the state-created danger exception `arises from the relationship between the state and the private assailant.'
Accordingly, the issue for this Court is very narrow: Do the enhanced allegations support an inference that the Defendants explicitly or implicitly communicated to Student A that he would not be interfered with or punished for an assault on the Plaintiff?
Plaintiff alleges in her Amended Complaint that the Defendants (1) "created a dangerous condition in admitting a student with a history of violence to Enfield Public Schools despite his lack of residency in the Town of Enfield"; (2) "allowed" Student A "to remain in a general education setting" without placing restrictions on him; (3) violated its own policy by not monitoring the hallways under construction and removing security cameras in the construction area. The Plaintiff further avers that Clark, specifically, (3) either "willfully abandoned the area by the boys' bathroom" and/or "willfully ignored signs that Student A was bringing Emily to the isolated location"; (4) entered and reentered the boys' bathroom at the time of the assault; and (5) made "contradictory statements" following the assault, regarding his presence at the scene of the assault. These new allegations, when added to the allegations in the Original Complaint, do not plausibly support an inference that the Defendants explicitly or implicitly communicated to Student A that he could assault the Plaintiff without fear of repercussion or interference.
First, the simple act of admitting a known-to-be-violent student to a school cannot be inferred to be tantamount to communicating impunity to that student should he decide to act on his violent impulses. In addition, the new allegations that Clark entered, momentarily left, and then re-entered the boys' bathroom at the time of the assault do not cure the deficiencies identified by Judge Hall. As previously held, "[a] failure to intervene when misconduct takes place, and no more, is not sufficient to amount to a state created danger." Pena, 432 F.3d at 110 (emphasis in original). Nor did Clark's momentary presence at the scene of the assault, explicitly or implicitly, communicate to Student A an approval or encouragement of his assaultive conduct.
At oral argument, the Plaintiff also argued that as Student A traversed the campus with the Plaintiff, on his way to the construction area, the Defendants should have intervened at any number of places along the way. With each failure to intervene, the Plaintiff argues, the Defendants implicitly communicated to Student A that he would not be stopped. Plaintiff argues that the Defendants thereby emboldened Student A through these implicit communications. This argument, at its core, is premised on the Defendant's failure to recognize the danger to the Plaintiff and to take action to prevent the assault. As discussed in the prior ruling, such allegations do not rise to the level of a substantive due process violation. (Ruling at 14-16.) See also Pena, 432 F.3d at 110. Recasting them as implicit communications is of no avail.
To establish a violation of substantive due process rights, the Plaintiff must also demonstrate that the Defendants' actions were "so egregious, so outrageous, that [they] may fairly be said to shock the contemporary conscience." Lewis, 523 U.S. at 847 n. 8; see also Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir. 2002) ("The protections of substantive due process are available only against egregious conduct which goes beyond merely offend[ing] some fastidious squeamishness or private sentimentalism and can fairly be viewed as so brutal and offensive to human dignity as to shock the conscience.") (internal quotations and citations omitted).
Although the Supreme Court has recognized that "the measure of what is conscience-shocking is no calibrated yard stick," Lewis, 523 U.S. at 847, it has noted that negligently inflicted harm is "categorically beneath the threshold of constitutional due process," and the intentional infliction of injury is the conduct "most likely to rise to the conscience-shocking level." Id. at 849. In between those extremes is "deliberate indifference," which can support a due process claim under certain circumstances. Id. at 850.
The new allegations in the Amended Complaint, in combination with those in the original complaint, do not plausibly support an inference that the Defendants' conduct was egregious or outrageous. The Defendants' admission of Student A into the school system and placement in a general education setting does not shock the conscience. See, e.g., HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881 CS, 2012 WL 4477552, at *12 (S.D.N.Y. Sept. 27, 2012) ("Making a bad decision or acting negligently is not the sort of conscience-shocking behavior that violates the Constitution"). Nor do the allegations that Clark entered, momentarily left, and then re-entered the boys' bathroom at the time of the assault, and thereafter made contradictory statements regarding his actions, rise to such a level. See Smith v. Guilford Bd. of Educ., 226 Fed. App'x 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."); Doe v. Torrington, 179 F.Supp.3d 179, 192 (D. Conn. 2016) ("[A]lthough in some cases Doe alleges that he reported bullying or assaults and Defendants did not take disciplinary action, this does not rise to the level of extreme or outrageous conduct."); Chambers v. N. Rockland Cent. Sch. Dist., 815 F.Supp.2d 753, 770-71 (S.D.N.Y. 2011) ("Here, [the Defendant's] judgment was that Tashana and the other students had been engaged in a verbal back-and-forth that required nothing more than the meetings that were held with Tashana and Unique. That subsequent events arguably proved him wrong does not establish that he was deliberately indifferent to Tashana's right to bodily integrity, and therefore his decision not to do more to confront Unique and the others falls far short of shocking the conscience.")
Nor do the new allegations support a claim of deliberate indifference. As Judge Hall previously noted:
(Ruling at 22.) See also Farmer v. Brennan, 511 U.S. 825, 837-838 (1994) (an official acts with deliberate indifference when that official knows of and disregards an excessive risk to a person's health or safety; "an official's failure to alleviate a significant risk that he should have perceived but did not" is insufficient.).
Because the Plaintiff's allegations are insufficient to show a state-created danger or egregious and outrageous conduct, the Plaintiff fails to state a claim for a violation of her substantive due process rights. Count One is therefore dismissed.
It necessarily follows that the Plaintiff cannot maintain a Monell claim against the School Board. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) ("Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants' liability under Monell was entirely correct."). Accordingly, Count Two is dismissed.
Having dismissed the Plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction over the state law claims for the reasons previously articulated by Judge Hall.
(Ruling at 27.) The Amended Complaint is therefore dismissed in its entirety.
For all of the foregoing reasons, the Defendants' renewed motion to dismiss is GRANTED. Judgement shall enter in favor of the Defendants.
