The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NICOLE JOHNSON, Parent, and N.S.,a *
minor, *
*
Plaintiffs, *
*
v. *
* Civil ActionNo. 1:15-cv-10026-ADB
BOSTON PUBLIC SCHOOLS and *
MASSACHUSETTS BUREAU OF SPECIAL *
EDUCATION APPEALS, et al., *
*
Defendants. *
*
MEMORANDUM AND ORDER
BURROUGHS, D.J.
This action commenced in January 2015.Plaintiffs filed Part One of the Bifurcated
Complaint on November 13, 2015, and Part Two on December 22, 2015.[ECF Nos. 71, 93].Part
One consisted of Plaintiffs’ appeal of the decision by the Board of Special Education Appeals
(“BSEA”) hearing officer,pursuant to the Individuals with Disabilities Education Act (“IDEA”).
[ECF No. 71]. Part Two alleges various claims under the Rehabilitation Act of 1973, the
Americans with Disabilities Act, and constitutional violations. [ECF No. 93].On August 17,
2016, the Court granted Defendant Boston Public Schools’(“BPS”) Motion for Summary
Judgment on all counts of Part Oneof the Bifurcated Complaint. [ECF No. 132]. On February 1,
2017, the Court granted Defendant BSEA’s motion to dismiss Part Two of the Bifurcated
Complaint, and denied Defendant BPS’s motion to dismiss. [ECF No. 149].1
1 Plaintiffs did not name Boston Children’s Hospital (“BCH”) or any individual doctors as
defendants in either part of the Bifurcated Complaint, and on March 30, 2016, the Court denied
Plaintiffs’ motion to amend the complaint to add BCH and the doctors as defendants. [ECF No.
127].Thus, at this time, the remaining defendants are BPS, Tommy Chang, Jeremiah Ford,
Marci Goldowsky(or Goldowski), and Lynn O’Brien.
Now before the Court are BPS’s second motion to dismiss Part Two of the Bifurcated
Complaint [ECF No. 158], and Defendants Chang and O’Brien’s motion to dismiss the claims
against them [ECF No. 162].
A. BPS’s Second Motion to Dismiss
BPS has filed a motion to dismiss all counts for failure to state a claim, but every
argument in BPS’s motion relies on the factual findings made by the BSEA hearing officer as
reflected in the Administrative Record. It is not apparent, however, that the Court may consider
the factual findings in the Administrative Record at the motion to dismiss stage. Ordinarily, in
evaluating a 12(b)(6) motion to dismiss, “any consideration of documents not attached to the
complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly
converted into one for summary judgment under Rule 56.” Ironshore Specialty Ins. Co. v. United
States, 871 F.3d 131, 135 (1st Cir. 2017)(quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993)).There are a few “narrow exceptions” to this rule,“for documents the authenticity of
which are not disputed by the parties; for official public records; for documents central to
plaintiffs’claim; or for documents sufficiently referred to in the complaint.” Id.(quoting
Watterson, 987 F.2d at 3). BPS invokes this rule, but does not explain which particular exception
applies here. While Plaintiffs would likely concede that the Administrative Record is an accurate
reflection of the hearing officer’s findings, they contest the substance and validity of those
findings. This difference reflects a factual dispute that likely cannot be resolved at the motion to
dismiss stage. Furthermore, while the Court’s prior summary judgment opinion [ECF No. 132]
relied on the hearing officer’s factual findings, because that opinion considered claims that
differed from the ones currently at issue,andbecausethe standard of review was not de novo,the
analysis for those claims is not identical to the analysis that would be required here. As such, to
the extent that the rulings in that order established anytype oflaw of the caseor havepreclusive
effect,thoserulings cannot be used to resolve the issues presented by the instant motion.
Therefore, given the claims and the state of the record, if BPS wishes to press these arguments, it
must either identify the basis on which the Court can rely on the Administrative Record to
resolve a 12(b)(6) motion,or filea motion for summary judgment.
Notwithstanding the above, however, the Court has identified amore fundamental
problem with the claims advanced in Part Two of the Bifurcated Complaint: it appears that they
aresubject to an exhaustion requirement.The IDEA requires aggrieved individuals to exhaust
their administrative remedies prior to filing a lawsuit. Frazier v. Fairhaven Sch. Comm., 276 F.3d
52, 59 (1st Cir. 2002)(citing 20 U.S.C. § 1415(l)). Moreover, this “exhaustion principle ‘applies
even when the suit is brought pursuant to a different statute so long as the party is seeking relief
that is available under subchapter II of IDEA.’” Id.(quotingRose v. Yeaw, 214 F.3d 206, 210
(1st Cir.2000)).The statute explicitly notes that claims brought pursuant to the ADA and the
Rehabilitation Act seeking relief available through the IDEA are subject to the exhaustion
requirement. 20 U.S.C. § 1415(l). Courts have interpreted the exhaustion requirement toapply to
§ 1983 claims as well.See, e.g.,Frazier, 276 F.3d at 59, 64; Doucette v. Jacobs, No. CV 15-
13193-JGD, 2018 WL 457173, at *12–13(D. Mass. Jan. 17, 2018),appeal docketed, No. 18-
1160(1st Cir. Mar. 2, 2018).The exhaustion requirement applies even where the plaintiffs seek
money damages. Frazier, 276 F.3d at 60–64.Furthermore, exhaustion is requiredwhere a parent
alleges that a school retaliated against her for advocating on behalf of her child. Weber v.
Cranston Sch. Comm., 212 F.3d 41, 47,51 (1st Cir. 2000).
The exhaustion requirement only applies where a plaintiffseeks relief from the denial of
afree appropriate public education (“FAPE”); claims that fall outside the scope of the FAPE are
not subject to the exhaustion requirement. See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 752
(2017). If a lawsuit alleges the denial of a FAPE, “the plaintiff cannot escape [the exhaustion
requirement] merely by bringing her suit under a statute other than the IDEA. . . .” Id.at 754. To
makethis determination, “a court should look to the substance, or gravamen, of the plaintiff’s
complaint.” Id.at 752. The Supreme Court has identified a few questions that canhelp illuminate
this issue. “First, could the plaintiff have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a school—say, a public theater or library?”
Id. at 756.“[S]econd, could an adult at the school—say, an employee or visitor—have pressed
essentially the same grievance?” Id.When the answer to one or both of these questions is no,
“then the complaint probably does concern a FAPE, even if it does not explicitly say so.” Id. In
addition, “a court may consider [whether] a plaintiff has previously invoked the IDEA’s formal
procedures to handle the dispute—thus starting to exhaust the Act’s remedies before switching
midstream.” Id.at 757.“A plaintiff’s initial choice to pursue [administrative procedures] may
suggest that she is indeed seeking relief for the denial of a FAPE—with the shift to judicial
proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize
the prospects of such a remedy.” Id.Here, it appears that most, if not all,of the claims in Part
Two of the Bifurcated Complaint satisfy these criteria, and thus may be subject to dismissal due
to Plaintiffs’ failure to exhaust their administrative remedies.2
Next, the Court has observed additional problems with Counts VI and VII of Part Two of
2 It is unclear whether afailure to exhaust IDEA remedies deprives the Court of subject matter
jurisdictionover the claims. The First Circuit has not ruled on this issue. SeeMr. H. v. Reg’l
Sch. Unit 21, No. 2:14-CV-148-GZS, 2015 WL 846791, at *5 n.5(D. Me. Feb. 26, 2015). The
Second Circuit appears to view the failure to exhaust an IDEA claim as depriving the district
court of subject matter jurisdiction. Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995). Other
courts are split. Mr. H., 2015 WL 846791, at *5n.5.
the Bifurcated Complaint, which allege constitutional violations.3
Count VI alleges that BPS violated the mother’s Fourteenth Amendment right to “raise
her child as she see[s] fit” because BPS instructed Student in sign language, despite the mother’s
objections.Plaintiffs do not assert that this decision was made accordingto apolicy or practice
established by BPS.Under the rule articulated in Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658 (1978), “a municipality may not be held liable under a theory of respondeat
superior for an employee’s constitutional violation,” but “it may be held liable when ‘execution
of [the municipality’s] policy or custom . . . inflicts the injury’ and is the ‘moving force’behind
the employee’s constitutional violation.”Saldivar v. Racine, 818 F.3d 14, 20 (1st Cir. 2016)
(quoting Monell,436 U.S. at 694). Although the complaint alleges that Defendants Ford and
Chang are “policy makers for the City,” and asserts that they “should be compelled to develop an
institutional policy . . . for parents who are concerned about the language or mode of
instruction,” this is a request for relief, not a factual allegation. Furthermore,even if the
complaint had alleged that the decision to instruct Student in sign language was made pursuant to
a policy or custom of BPS, the Fourteenth Amendment right “to direct the upbringing and
education” of one’s children does not “include the right to dictate the curriculum at the public
school to which parents have chosen to send their children.” Pisacane v. Desjardins, 115 F.
App’x 446, 450 (1st Cir. 2004).
Count VII asserts that the BSEA hearing officer made an adverse credibility
determination against the mother due to the mother’s political beliefs, in violation of herFirst
Amendment rights.Since this claim is based on conduct that took place in the administrative
hearing, and a similar argument was raised inPart One of the Bifurcated Complaint, which was
3 Counts VI and VII may be subject to dismissal for failure to exhaust administrative remedies,
for the reasons discussed supra, in addition to the specific issues identified here.
an appeal of the agency decision, it appears Count VII is duplicative of an issue that already was,
or should have been, raised in the administrative proceeding and subsequent appeal.
Furthermore, BSEA has been dismissed as a defendant, and it is not apparent that this claim can
be asserted against BPS where the only allegation pertaining to BPS is that the hearing officer
acted “at the instigation” of BPS’s attorney.
Given the potential deficiencies noted above, the parties shall submit supplemental
briefing addressing the exhaustion requirement, liability under Monell,whether Plaintiffs have
stated a claim for a violation of the Fourteenth Amendment, and whether Count VII can be
asserted against BPS.Defendant BPS is granted leave to amend its motion to dismiss [ECF No.
158] to include arguments on the issues identified in this order if it so chooses.
B. Motion to Dismiss Chang and O’Brien
Defendants Chang and O’Brien filed a separate motion to dismiss the claims asserted
against them individually. Plaintiffs have not opposed this motion.
Chang argues that he is entitled to qualified immunity because he was not involved with
the provision of services to Student and did not makeany discretionary decisions concerning
Plaintiffs. Part Two of the Bifurcated Complaint makes no factual allegations concerning Chang;
it only states that he is the Superintendent of Schools for the City of Boston, in addition to the
claim that he is a “policy maker[] for the City,” and the assertion that he “should be compelled to
develop an institutional policy” for the city.The complaint does not explain how he was
involved in the decisions at issue, either personally or as a responsible party. As such, Plaintiffs
have failed to set forth sufficient factual detail to state a claim against Chang, and accordingly,
the claims against him are dismissed.
Defendant O’Brien argues that the claims against her should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(5) for failure to effect proper service of process. The proof
of service filed by Plaintiffs indicates that the summons and complaint were served on the
secretary at the Horace Mann School. [ECF No. 163-1 at 4].This attempt at service is not
adequate.SeeFed. R. Civ. P. 4(e)(2) (requiring service in person, or by leaving a copy at the
individual’s dwelling, or delivering a copy to an agent). Federal Rule of Civil Procedure 4(e)(1)
permits service to be made in accordance with state law, but Massachusetts Rule of Civil
Procedure4(d)(1) imposes essentially the same requirements as Federal Rule of Civil Procedure
4(e)for service upon an individual.These rules do not permit service by leaving the documents
at thedefendant’s workplace. In addition, O’Brien asserts that the secretary is not her agent, and
Plaintiffs have not provided any evidence that would indicate otherwise.Thus, Plaintiffs have
again failed to comply with the applicable rules. In recognition ofthe difficulties that Plaintiffs
have encountered in serving the individual defendants, the Court previously granted them
multiple extensions of time to complete serviceon the individual defendants. [ECF Nos. 69,149,
153]. Plaintiffs are not entitled tounlimitedperiods of timewithin whichto make repeated
attempts at service, however.Therefore, the claims against O’Brien are dismissed.4
4 Defendants Ford and Goldowsky (or Goldowski) have not yet filed an answer or a motion to
dismiss in response to Part Two of the Bifurcated Complaint.The most recent proof of service
filed by Plaintiffs indicates that neither defendant has been properly served. [ECF No. 163-1 at 7,
9]. Pursuant to Federal Rule of Civil Procedure 4(m), when a defendant has not been served, the
Court “must” dismiss the claims against that defendant “or order that service be made within a
specified time.” The Court may do so on its own motion after giving notice to Plaintiffs. Fed. R.
Civ. P. 4(m).Therefore, Plaintiffs are hereby notified that Ford and Goldowsky (or Goldowski)
will be dismissed as defendants if Plaintiffs do not effect proper service on them by March 23,
2018.
C. Conclusion
Accordingly,the parties shall submit supplemental briefing on BPS’s motion to dismiss
[ECF No. 158] addressing the issues identified supraby March 23, 2018. Defendants Chang and
O’Brien’s motion to dismiss [ECF No. 162] is GRANTED.
SO ORDERED.
March 7, 2018 /s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE