Biscan v. Town of Wilmington

United States District Court

District of Massachusetts

)

Roberta Biscan, et al., )

)

Plaintiffs, )

) Civil Action No.

v. ) 23—11170-NMG

)

Town of Wilmington, et al., )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This action arises out of a series of incidents during

which several disabled students were allegedly abused,

physically and mentally, while attending Wilmington,

Massachusetts public schools. The complaint, which was filed by

a group of affected parents on behalf of themselves (“parent-

plaintiffs”) and their children (“student-plaintiffs”)

(collectively, “the plaintiffs”), seeks relief from the Town of

Wilmington (“the Town” or “Wilmington”), school officials: Alice

Brown-Legrand, Paul Ruggiero, Charlotte King and Glenn Brand

(collectively, “the school officials”), teachers: Kimberly

Cummings (“Cummings”) and Kelly Fogarty, and assistant teachers:

Jessica Talbot (“Talbot”) and Victoria Fitzgerald (“Fitzgerald”)

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(collectively, “the defendants”).1 The complaint initially

included 17 counts and seeks relief on various constitutional,

federal and common law grounds.

Pending motions to dismiss were filed by: 1) the Town of

Wilmington and the school officials (Docket No. 17), 2)

Fitzgerald (Docket No. 20), 3) Talbot (Docket No. 29) and 4)

Cummings (Docket No. 32). The Court will consider those motions

and Cummings’s motion for oral argument (Docket No. 34)

together. Defendant Kelly Fogarty (who was mis-identified in

the complaint as “Kelly Foggerty”), was dismissed from the case

with prejudice by joint stipulation (Docket No. 39).

Accordingly, the Court will not address Counts XIV-XVI, because

Fogarty was the only defendant named in those counts, nor Count

IV, which plaintiffs agree should be dismissed in its entirety.

The complaint does not specify whether the teachers and

school officials are sued in their personal or official

capacities. After reviewing the nature of plaintiffs’ claims,

the damages requested and the nature of the defenses raised,

including the defense of qualified immunity by some defendants,

the Court concludes that plaintiffs intended to hold the

1 Alice Brown-Legrand served as the Director of Special Education for the

Town; Charlotte King served as the Principal at Wildwood School, one of two

schools implicated in the complaint; Glenn Brand served as the Superintendent

for the public school system of Wilmington; and Paul Ruggiero was the interim

Superintendent at some unspecified point of time.

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individual defendants personally liable. See Powell v.

Alexander, 391 F.3d 1, 22-23 (1st Cir. 2004); see also Hourihan

v. Bitinas, 2018 WL 10246994, at *3 (D. Mass. June 27, 2018)

(“Given that [p]laintiff has brought a separate count

specifically against the Town and did not object to defendant

officers' implied assumption that they were being sued in their

individual capacities, the Court construes the complaint as

asserting claims against the officers in their individual

capacities only.”), aff'd, 811 F. App'x 11 (1st Cir. 2020).

I. Background

A. Facts

The essence of the complaint is that, during a 17-year

period between 2005 and 2021, Cummings intermittently abused

disabled students physically and emotionally in her pre-

kindergarten or kindergarten classes. Fitzgerald, who served as

an assistant teacher in Cummings’s class from February, 2017, to

March, 2021, purportedly failed to intervene or report

Cummings’s abuse to the Massachusetts Department of Children &

Families (“DCF”). Talbot, meanwhile, purportedly physically

abused one student between 2019 and 2020. The Wilmington School

District (“the School District”) and school officials are said

to have failed to train, supervise or terminate the allegedly

abusive teachers, despite receiving reports of abuse by staff

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members and parents.2 The complaint as to each defendant is

discussed seriatim.

1. Cummings

Cummings served as a teacher at the Wildwood and Shawsheen

Schools in Wilmington between 2003 and 2021. According to the

complaint, she was terminated after the commencement of a DCF

investigation in May, 2021.

Her purported misconduct began in 2005 with an incident

involving an eight-year-old boy with autistic spectrum disorder

identified as “J.L.”3 According to the complaint, while serving

as his teacher, Cummings “put J.L. in a chair, pushed him tight

up against a table and sat directly behind him” for almost one

hour. J.L. screamed throughout the incident, and allegedly

suffered broken blood vessels in his eyes as a result. An

assistant teacher attempted to send J.L. to the school nurse,

but Cummings countermanded. The School District did not address

the complaint of J.L.’s parents for more than two months,

whereupon they removed him from Cummings’s class. He allegedly

suffered severe physical and emotional distress.

2 According to the Town’s motion to dismiss, the Wilmington School Committee

is the final policymaker with respect to the Wilmington School District.

3 In the complaint, all students are identified by pseudonym (their initials),

due to their ages and/or disability status.

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Between 2008 and 2013, Cummings purportedly had

“inappropriate and potentially harmful physical interactions”

with her students, including using her foot to move non-verbal

students, forcefully handling students and pulling them up by

their underarms. In one case, during the 2009-10 school year,

student “C.B.” repeatedly came home from class with bruises and

scratches on his face and back and told his parents his teacher

was mean. On another occasion, C.B. came home with a large

bruise around his tailbone and told his mother that Cummings had

pushed him. The complaint alleges that the School District

ignored the reports of C.B.’s parents and removed C.B. from her

classroom only after the parents’ demand.

The bulk of the allegations derive from Cummings’s conduct

between 2016 and 2021, during which time she allegedly “was

physically and verbally abusive to N.B., R.C.1, R.C.2, C.L.,

A.F., and C.C., R.F.”4 The complaint alleges, inter alia, that

Cummings “slammed” one student into her chair, verbally abused

and refused to let another student eat her lunch, and refused to

put a “pull-up” on another child who she knew had toileting

issues.

4 A.F. is referred to as “A.F.” in the complaint and some pleadings but as

“A.L.” in others.

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In 2020, the School District allegedly suspended Cummings

“for incompetency, conduct unbecoming a teacher and other just

cause” following an incident in which she pushed a pre-

kindergarten student’s elbow off a table, denied the child water

and refused to implement his individualized education plan.

In February, 2021, after Cummings was accused of dragging

N.B. by his wrists, N.B.’s pediatrician filed a complaint with

DCF. In May, 2021, Cummings purportedly injured N.B., a six-

year-old boy with autistic spectrum disorder, resulting in a

three-and-a-half-inch bruise on his lower back. It is alleged

that N.B. would often say, “no school, teacher hurt me,” and

would refuse to enter Mr. Cummings’s classroom when delivered by

his parents.

The complaint alleges that Cummings’s employment was

terminated in May, 2021 after DCF commenced an investigation.

2. Fitzgerald

According to the complaint, Fitzgerald served as an

assistant teacher in Cummings’s classroom at the Wildwood School

from February, 2017, to May, 2021. Similarly, her employment

was terminated after the DCF commenced its investigation.

The complaint does not allege that Fitzgerald physically or

verbally abused any of the students herself. Instead,

Fitzgerald purportedly “observed Cummings commit” a series of

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abuses while they taught together and “failed to take any action

to stop the abuse” or report any of the abuse to DCF as required

by law.

3. Talbot

According to the complaint, Talbot served as an assistant

teacher to Fogarty at the Wildwood School in Wilmington at

unspecified times. The single allegation of misconduct against

Talbot is that, in 2019 and 2020, she physically squeezed G.S.’s

arms and neck hard enough to cause pain and rubbed G.S.’s chest

(similar to a sternum rub). G.S.’s mother purportedly reported

the incident but no action was taken.

4. Wilmington and School Officials

The complaint does not include allegations that any other

school official personally perpetuated any physical or verbal

abuse. Instead, plaintiffs allege that school staff members and

parents repeatedly reported their concerns about Cummings and

Talbot but that school officials on behalf of the School

District failed to intervene, discipline the teachers or

otherwise act on the reports. Cummings and Talbot retained

their teaching positions.

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B. Procedural History

Plaintiffs initially filed a 17-count complaint in

Middlesex Superior Court in March, 2023. Defendants removed the

action to federal court in May, 2023.

Since that time, three counts have been dismissed in their

entirety, certain counts have been dismissed against specific

defendants and one defendant has been dismissed entirely.

Specifically, as noted above, all counts against Fogarty were

dismissed by joint stipulation pursuant to Fed R. Civ. P.

41(a)(1)(A)(ii). Plaintiffs C.B., J.L., A.F., C.L. and C.C.

agreed to dismiss Count I against the Town. Plaintiffs

dismissed Count III against the school officials, Count IV

against the school officials and the Town, Count V against the

Town and Count X against Fitzgerald with respect to students

C.B., J.L. and G.S.

All four pending motions to dismiss seek dismissal pursuant

to Fed. R. Civ. P. 12(b)(6).

II. Legal Standard

To survive a motion to dismiss, a claim must contain

sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In considering the merits of

a motion to dismiss, the Court may only look to the facts

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alleged in the pleadings, documents attached as exhibits or

incorporated by reference and matters of which judicial notice

can be taken. Nollet v. Justices of Trial Court of Mass., 83

F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248 F.3d 1127 (1st

Cir. 2000).

Furthermore, the Court must accept all factual allegations

in the claim as true and draw all reasonable inferences in the

claimant’s favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68,

69 (1st Cir. 2000). If the facts in the claim are sufficient to

state a cause of action, a motion to dismiss will be denied. See

Nollet, 83 F. Supp. 2d at 208. That standard is

intended to screen out claims in which the factual

allegations of the complaint are too scanty or too

vague to render the claims plausible.

Ríos-Campbell v. U.S. Dep't of Com., 927 F.3d 21, 25 (1st Cir.

2019).

Although a court must accept as true all the factual

allegations in a claim, that doctrine is not applicable to legal

conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

Threadbare recitals of legal elements which are supported by

mere conclusory statements do not suffice to state a cause of

action. Id.

III. Application

The Court will consider each count sequentially.

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A. Count I (Negligence, Town of Wilmington)

Student-plaintiffs N.B., R.C.1, R.C.2, G.S. and R.F. bring

a common negligence claim against the Town. They allege that it

owed a duty of reasonable care to the student-plaintiffs and

should have protected them from the misconduct of Cummings and

Talbot.5 Specifically, the Town purportedly breached its duty by

negligently failing to train and supervise Cummings and Talbot

and by continuing to employ them after reports of misconduct

were received.

In its motion to dismiss, Wilmington insists that those

negligence claims are barred by Section 10(j) of the

Massachusetts Tort Claims Act, M.G.L. c. 258, §§ 1 et seq.

(“Section 10(j)” of the “MTCA”).

Section 10(j) “provide[s] some substantial measure of

immunity from tort liability to government employers.” Brum v.

Town of Dartmouth, 428 Mass. 684, 695 (1999). Under the

statute, municipalities cannot be held liable “except where the

condition or situation was originally caused by the public

employer.” Id. at 692 (internal quotation marks omitted). The

Town contends that the student-plaintiffs failed to allege that

the Town itself was the original cause of any misconduct and

5 The complaint also initially alleged the Town failed to protect the

plaintiffs from misconduct and inappropriate conduct by Fogarty but all

claims against her have been dismissed.

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therefore its failure to act cannot be the “original cause” of

the condition or situation. See Kent v. Commonwealth, 437 Mass.

312, 317 (2002). The statute requires some affirmative act by

the municipality. Id.

The complaint does not allege that Wilmington took any

affirmative act that was the “original cause” of the alleged

torts. Section 10(j) does, however, contain an exception which

allows a plaintiff to recover

any claim based upon explicit and specific assurances

of safety or assistance, beyond general

representations that investigation or assistance will

be or has been undertaken . . . provided that the

injury resulted in part from reliance on those

assurances.

Mass. Gen. Laws ch. 258, § 10(j)(1) (emphasis added).

In the context of Section 10(j)(i), the Supreme Judicial

Court (“SJC”) has explained that “explicit” means “a spoken or

written assurance [rather than] one implied from the conduct of

the parties or the situation.” Lawrence v. City of Cambridge,

422 Mass. 406, 410 (1996). To be “specific,” the terms of the

assurance must be “definite, fixed, and free from ambiguity.”

Id.

That exception does not apply in this case. The complaint

does not suggest that Wilmington made any spoken, written or

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otherwise specific assurance that the alleged misconduct of

Cummings or Talbot would be addressed.

Accordingly, Count I of plaintiff’s complaint against the

Town will be dismissed as barred under Section 10(j) of the

MTCA.6

B. Count II (Section 1983, Wilmington)

The complaint alleges that the Town violated the

plaintiffs’ rights pursuant to 42 U.S.C. § 1983 (“§ 1983”) and §

1988. According to the complaint, Wilmington adopted, approved

and enforced a policy, practice and custom tolerating the

violation of constitutional rights. That policy purportedly

resulted in a failure of the Town to train and supervise its

employees properly with respect to investigating and responding

to reports of teacher misconduct.

1. Standard

It is well established that “[a] municipality cannot be

held liable solely because it employs a tortfeasor. . . .”

Monell v. Dept. of Soc. Servs. of the City of N.Y., 436 U.S.

658, 691 (1978). A plaintiff can bring a § 1983 claim against a

municipality only if she sufficiently pleads “the existence of

6 The Town also asserts that the negligence claims of C.B., J.L., C.C., C.L.

and A.F. are time-barred but, because the Court disposes of those claims

under Section 10(j), it declines to consider the Town’s statute of

limitations argument.

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an official municipal policy or custom condoning the alleged

constitutional violation.” Oullette v. Beaupre, 977 F.3d 127,

140 (1st Cir. 2020) (citation omitted). The municipal custom

must be so well settled that municipal officials “can be said to

have either actual or constructive knowledge of it yet did

nothing to end the practice." Bordanaro v. McLeod, 871 F.2d

1151, 1156 (1st Cir. 1989). A plaintiff must also show that

"the custom [was] the cause of and the moving force behind the

deprivation of constitutional rights.” Id.

The failure of a municipality to train employees may result

in liability under § 1983 when it amounts

to deliberate indifference to the rights of persons

with whom the untrained employees come into contact.

Connick v. Thompson, 563 U.S. 51, 61 (2011) (cleaned up).

Deliberate indifference requires “proof that a municipal actor

disregarded a known or obvious consequence of his action." Id.

(citation omitted). "A showing of simple or even heightened

negligence will not suffice." Bd. of Comm'rs v. Brown, 520 U.S.

397, 407 (1997).

2. Application

The complaint contains three broad allegations involving

the School District: that it

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1) failed to address the parents’ complaint for over

two months after the alleged physical abuse by

Cummings of J.L. in 2005;

2) failed to report the alleged abuse to the DCF after

its own internal investigation; and

3) failed to take any action even after school

employees reported the alleged abuse.

The complaint sheds no light on when the School District

became aware of reports of misconduct or what form those reports

took. It does not specify which specific incidents of alleged

abuse were reported or explain who at “the school district”

received such reports. Moreover, plaintiffs allege that the Town

failed properly to train its officers and employees but provides

no detail whatsoever about what kind of training the Town did

offer or should have offered.

Given its sparsity, the complaint does not plausibly allege

that the Town of Wilmington had an official municipal policy,

custom or practice that condoned any constitutional violation.

See Monell, 436 at 691; see also DiRico v. City of Quincy, 404

F.3d 464, 469 (1st Cir. 2005). The complaint’s factual

allegations are too broad and conclusory to survive a motion to

dismiss. See Ali Abdisamad v. City of Lewiston, 960 F.3d 56, 60

(1st Cir. 2020) (complaint’s factual allegations were

insufficient under Monell because they “include no facts

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whatsoever about a [] policy that would be unconstitutional and

create municipal liability”).

In summary, Monell’s “stringent standard of fault” cannot

be met with such barebone factual allegations. Count II will

be dismissed.

C. Count III (Rehabilitation Act, Wilmington)

Plaintiffs allege that the Town intentionally and

deliberately failed and refused to implement proper

accommodations for disabled student-plaintiffs despite their

obligation to do so and permitted the student-plaintiffs to be

abused by Cummings and Talbot. In so doing, the Town

purportedly discriminated against plaintiffs by treating them

differently than their non-disabled peers.7

Count III states a claim under Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), which

provides that no disabled person shall be discriminated against

“solely by reason of her or his disability.” Specifically,

Section 504 provides that

[n]o otherwise qualified individual with a disability

. . . shall, solely by reason of her or his

disability, be excluded from the participation in, be

denied the benefits of, or be subjected to

7 Plaintiffs initially filed Count III against both the Town and the school

officials but dismissed their claims against the school officials pursuant to

a joint stipulation.

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discrimination under any program or activity receiving

Federal financial assistance . . . .

29 U.S.C. § 794(a).8

An alleged violation of the Rehabilitation Act requires a

showing of four elements: (1) the plaintiff is disabled; (2) the

plaintiff sought services from a federally funded entity; (3)

the plaintiff was “otherwise qualified” to receive those

services; and (4) the plaintiff was denied those services

“solely by reason of her . . . disability.” See Lesley v. Hee

Man Chie, 250 F.3d 47, 52- 53 (1st Cir. 2001).

The Town does not dispute that plaintiffs satisfy the first

three elements of Section 504. It avers only that plaintiffs

did not sufficiently allege that the Town discriminated against

the plaintiffs “solely by reason of [their] disability.”

The Court agrees. The complaint fails adequately to plead

the existence of any discriminatory intent. See Leary v. Dalton,

58 F.3d 748, 753 (1st Cir. 1995) (explaining plaintiff must

plead facts that “show at a minimum that his disability was a

reason -- if not the sole reason -- for” action taken). The

complaint’s conclusory allegation that the Town discriminated

against plaintiffs by treating them differently than their non-

8 In their complaint, plaintiffs cite “794 U.S.C. § 504,” which does not

exist. The Court presumes plaintiffs intended to cite 29 U.S.C. § 794.

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disabled peers, with no other facts to support that assertion,

is insufficient. Based on the complaint’s scant facts, it

cannot be inferred that the Town failed to intervene solely

because of the students’ disability status. See Falmouth Sch.

Dep't v. Doe, 44 F.4th 23, 46-47 (1st Cir. 2022) (affirming

district court determination that complaint failed to plead

claim under Section 504 adequately where “nothing in the record

. . . would support an inference of retaliatory animus or

disability-based animus”). Count III will be dismissed.

D. Count V (IIED)

Count V is a claim for intentional infliction of emotional

distress (“IIED”) against the school officials, Fitzgerald,

Talbot and Cummings.9 Plaintiffs allege that defendants

physically or emotionally abused the student-plaintiffs in their

care or allowed others to abuse them.

1. Standard

Under Massachusetts law, to establish intentional

infliction of emotional distress, a plaintiff must show that

(1) [] the actor intended to inflict emotional

distress or that [the actor] knew or should have known

that emotional distress was the likely result of [the

actor's] conduct . . .;

9 Plaintiffs dismissed Count V against the Town.

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(2) [] the conduct was “extreme and outrageous, beyond

all possible bounds of decency, [and] was utterly

intolerable in a civilized community,”;

(3) [the actor's conduct was a] cause of the

plaintiff's emotional distress . . .; [and]

(4) [] the emotional distress sustained by the

plaintiff was “severe” and of a nature “that no

reasonable [person] could be expected to endure.”

Armstrong v. Lamy, 938 F. Supp. 1018, 1049 (D. Mass. 1996)

(quoting Agis v. Howard Johnson Co., 371 Mass. 140, 144-45

(Mass. 1976)).

The second element makes this an especially stringent

standard. A court may grant a motion to dismiss where the

conduct alleged cannot be deemed utterly intolerable in a

civilized community. Polay v. McMahon, 468 Mass. 379, 386

(2014).

2. School Officials

Even if accepted as true, the alleged failure by school

officials to act does not rise to the level of severe and

outrageous conduct required for an IIED claim. See Doe v.

Bradshaw, 2013 WL 5236110, at *13 (D. Mass. Sept. 16, 2013)

(finding even deliberate indifference toward a student’s rights

does not mean the defendants' actions were “extreme and

outrageous” or “beyond all possible bounds of decency”); Ahern

v. Sig Sauer, Inc., 2021 WL 5811795, at *4 (D. Mass. Dec. 7,

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2021) (no IIED claim because no allegation of a failure to act

“directed at [plaintiff] and intended to cause [plaintiff]

emotional distress”). Plaintiffs’ IIED claim against the school

officials will be dismissed.

3. Fitzgerald

Similar to the school officials, Fitzgerald’s purported

misconduct arises from her failure to intervene rather than her

own conduct. Her failure to act, even if true, does not rise to

the level of extreme and outrageous behavior required by the

statute. Id. The complaint’s broad assertion that Fitzgerald

was present but failed to report all abuse does not allege

sufficient tortious intent toward the students. See Polay, 468

Mass. at 388; Gable v. Borges Construction, Inc., 792 F. Supp.

2d 117, 126 (D. Mass. 2011) (dismissing IIED claim where

complaint did not allege tortious intent toward plaintiff).

Moreover, plaintiffs do not properly allege that Fitzgerald’s

failure to intervene caused them emotional distress so severe

that no reasonable person could be expected to endure it. See

Polay, 468 Mass. at 388. Plaintiffs’ IIED claim against

Fitzgerald will be dismissed.

4. Talbot

Even if accepted as true, the single allegation against

Talbot, although troubling, cannot support an IIED claim.

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Again, “[t]he standard for making a claim of intentional

infliction of emotional distress is very high," Galvin v. U.S.

Bank, N.A., 852 F.3d 146, 161 (1st Cir. 2017) (citation

omitted), and a motion to dismiss may be granted when the

conduct alleged does not meet that standard. Id. G.S.’s single

allegation, which consists of a single two-sentence paragraph,

does not allege conduct that goes "beyond all bounds of decency

and [is] utterly intolerable in a civilized community." Agis,

371 Mass. at 145. It does not, for example, suggest Talbot

harbored any tortious intent toward G.S. See Gable, 792 F. Supp.

2d at 126.

In addition, G.S. does not allege facts that suggest he

suffered emotional distress so severe that no reasonable person

could be expected to endure it. His broad assertion that he

“suffered severe physical and emotional distress, including

feelings of anxiety” does not suffice. See Polay, 468 Mass. at

388. G.S.’s IIED claim will be dismissed.

5. Cummings

Student-plaintiffs’ IIED claim against Cummings is a

different proposition given the repeated nature of the alleged

conduct.

Repeated harassment . . . may compound the

outrageousness of incidents which, taken individually,

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might not be sufficiently extreme to warrant liability

for infliction of emotional distress.

Sindi v. El-Moslimany, 896 F.3d 1, 21 (1st Cir. 2018) (quoting

Boyle v. Wenk, 378 Mass. 592, 595 (Mass. 1979)). The complaint

alleges a pattern of physical and emotional harassment at the

hands of Cummings that persisted for 17 years in the classroom.

Plaintiffs claim that, although Cummings attended trainings and

received multiple disciplinary suspensions, her conduct

continued. As a teacher of especially young and disabled

students, Cummings was responsible for particularly vulnerable

children. If the allegations are true and proven, at least some

of her conduct was utterly intolerable in a civilized community.

For all student-plaintiffs except G.S., it is plausible

that a jury could determine that Cummings intended to cause

student-plaintiffs emotional distress and her acts constituted

extreme and outrageous conduct.10 Student-plaintiffs therefore

have stated the first and second elements of a claim for IIED.

Cummings doubts whether plaintiffs can meet the fourth

element, which requires them to establish that they suffered

distress so “severe [that] no reasonable [person] could be

expected to endure” it. Armstrong, 938 F. Supp. at 1049 (quoting

10 The complaint does not suggest that G.S. and Cummings had any interaction

and all of G.S.’s claims against Cummings will be dismissed.

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Agis, 371 Mass. at 144-145)). She is correct that the complaint

at times describes the students’ distress in a conclusory

fashion which is insufficient but some student-plaintiffs do

ultimately allege that their distress is severe and ongoing.

Accordingly, the Court must determine which student-plaintiffs

have sufficiently pled facts to support IIED claims against

Cummings.

N.B. and C.L. sufficiently pled the third and fourth

elements of a claim for IIED. According to the complaint, N.B.

continues to undergo trauma therapy following Cummings’s abuse,

and

had increased staring spells, had increased emotional

lability, had agitated behaviors, and had sleep

difficulties and nightmares

because of Cummings’s conduct. C.L. similarly contends that she

suffers from post-traumatic stress disorder, panic attacks and

anxiety.

In comparison, J.L., C.B., R.F., A.F. and C.C. all allege

that they “suffered severe physical and emotional distress,

including feelings of anxiety” but provide insufficient

description of their distress. Their claims, which simply

amount to little more than “a recitation of the element of

severe emotional distress,” Polay, 468 Mass. at 388, will be

dismissed.

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The claims of R.C.1. and R.C.2 will also be dismissed.

R.C.1. purportedly regressed “in many of his disability related

issues” following the alleged conduct. Even if accepted as

true, that broad claim does not satisfy the high bar for proof

of severity. See Sindi, 896 F.3d at 22. The acknowledgment in

the complaint that “R.C.1’s regressions ceased” after he was

removed from Cummings’s classroom also undermines the alleged

severity of the distress. R.C.2, meanwhile, purportedly “became

more physically aggressive” after joining Cummings’ class, in

addition to experiencing “severe physical and emotional

distress.” R.C.2 does not plausibly allege that his distress

was so severe that no reasonable person could be expected to

endure it.

In conclusion, N.B. and C.L. may proceed with their IIED

claims against Cummings. The other IIED claims will be

dismissed.

E. Count VI (Section 1983, School Officials)

Student-plaintiffs allege that the school officials failed

properly to hire, train, supervise and discipline Cummings,

Fitzgerald and Talbot, and that they acted with deliberate

indifference toward plaintiffs’ constitutional rights.

1. Standard

Under § 1983, a supervisor may be liable if

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(1) the behavior of his subordinates results in a

constitutional violation, and (2) the supervisor’s

action or inaction was affirmatively linked to that

behavior in the sense that it could be characterized

as supervisory encouragement, condonation or

acquiescence or gross negligence amounting to

deliberate indifference.

Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008) (cleaned up).

To demonstrate deliberate indifference, plaintiffs must

establish

(1) a grave risk of harm, (2) the [defendants’] actual

or constructive knowledge of that risk, and (3) the

[defendants’] failure to take easily available

measures to address that risk.

Rochleau v. Town of Millbury, 115 F. Supp. 2d 173, 181 (D. Mass.

2000).

In addition, a § 1983 claim based on supervisory liability

contains a causation requirement. Plaintiffs “must

affirmatively connect the supervisor's conduct to the

subordinate's violative act or omission.” Maldonado-Denis v.

Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).

2. Application

At the motion to dismiss stage, a court must assess whether

plaintiffs have sufficiently pled facts “as to each defendant.”

Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009)

(emphasis in original). Accordingly, while the plaintiffs often

commingle the four school officials in the complaint, the

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allegations against Legrand, King, Brand and Ruggiero will be

considered separately.

Some allegations against the four school officials are

collective. For example, after broadly outlining Cummings’s

alleged conduct, the complaint asserts that Legrand, King,

Ruggiero and Brand “were informed by various staff members

and/or parents that Cummings had committed the above stated

abuse” but failed to report the abuse to DCF or impose any

discipline. Such an allegation is too broad and vague to

provide the necessary “factual enhancement [that distinguishes]

possibility and plausibility of entitlement to relief." Twombly,

550 U.S. at 557 (citation and internal quotations omitted); see

Pollard v. Georgetown Sch. Dist., 132 F. Supp. 3d 208, 231 (D.

Mass. 2015) (allegation that “administrators were advised of

and/or were otherwise aware of the abuse [was too] undetailed

and conclusory” to put school district on notice (citation

omitted)).

With respect to Legrand and Ruggiero, plaintiffs identify a

single specific complaint. They claim that after C.L. suffered

physical and verbal abuse in Cummings’s classroom, C.L.’s mother

“made multiple complaints to King, Legrand, Ruggiero and the

School Committee” and requested that they file a complaint with

DCF. The school officials purportedly refused. The complaint

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does not describe when those reports were filed, what form they

took, or the reason why Legrand or Ruggiero were required to

report to DCF. C.L.’s allegation, even if accepted as true,

does not satisfy the “deliberate indifference” standard nor the

causation requirement.

Plaintiffs’ § 1983 claim against Brand fares no better.

The single specific allegation against Brand is that after N.B.

suffered abuse in Cummings’s classroom, “N.B.’s parents

consistently reported their concerns regarding Cummings’ abusive

behavior” to King and Brand. That vague allegation does not

support a § 1983 claim.

With respect to King, the complaint contains two additional

allegations:

[After Cummings physically and emotionally abused

C.C.,] the incident was reported to King by an

assistant teacher. Cummings was suspended for a few

days. King did not report this incident to DCF or

require any retraining.

[After Cummings physically injured R.C.1, his] parents

reported their concerns regarding [the] abusive

behavior to the school administration, specifically

including King.

King’s conduct is not sufficiently conscience-shocking to

survive a motion to dismiss. First, as discussed below, the

§ 1983 claims of C.C. and R.C.1 against Cummings will be

dismissed because they do not shock the conscience. It would be

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incongruous to allow those plaintiffs to pursue a § 1983 claim

against King for failing to report Cumming’s conduct while not

allowing them to pursue a § 1983 claim against Cummings herself.

The case of Doe1 v. Boston Public Schools also informs the

Court’s determination. 2019 WL 1005498 (D. Mass. Mar. 1, 2019).

In that case, school officials were alleged to have purposefully

discouraged and delayed the filing of a mandatory report

regarding a sexual assault. Id. at *1. A teacher who did file a

report was fired in retaliation. Id. At the motion to dismiss

stage, another session in this Court determined that it was a

“close question [but that the conduct of the school officials]

shock[ed] the conscience.” Id. at *4-5.

In the case at bar, plaintiffs do not allege that King

discouraged parents or teachers from reporting Cummings’s

conduct. If anything, the complaint suggests that King may have

disciplined Cummings by suspending her after learning about the

incident involving C.C and, while King’s failure to report

certain incidents may have been a “violation[] of state law[,]

[t]hat failure does not amount to inherently egregious conduct.”

J.R. v. Gloria, 593 F.3d 73, 81 (1st Cir. 2010). The lack of

detailed allegations regarding King’s response also compels the

Court to dismiss the claim. See Pollard, 132 F. Supp. at 231.

It is troubling that King may have failed to respond properly to

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reports of misconduct, as presumably expected, but the

allegations against King do not amount to a § 1983 claim.

In summary, plaintiffs’ § 1983 claims against all of the

school officials will be dismissed. The Court therefore need

not address the officials’ qualified immunity defense.

F. Count VII (Section 1983, Cummings)

All student-plaintiffs except G.S. bring § 1983 claims

against Cummings and allege that she violated their substantive

due process rights under the Fourteenth Amendment.

1. Motion to Dismiss

In her motion to dismiss, Cummings contends that, because

her alleged conduct cannot be deemed as shocking to the

conscience, plaintiffs cannot prevail on their § 1983 claims.

Even if her conduct were conscience-shocking, Cummings maintains

that she is entitled to qualified immunity.

2. Standard

Section 1983 provides a cause of action for persons

deprived of a constitutional right by someone acting under the

color of state law. Health & Hosp. Corp. v. Talevski, 143 S. Ct.

1444, 1450 (2023). To bring a substantive due process claim, a

plaintiff challenging specific acts of state officials must show

(1) that they were deprived of a protected life, liberty or

property interest and (2) that the conduct was so egregious as

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to shock the conscience. Pagan v. Calderon, 448 F.3d 16, 32 (1st

Cir. 2006).

With respect to the deprivation of a protected interest,

where school authorities, acting under color of state

law, deliberately decide to punish a child for

misconduct by restraining the child and inflicting

appreciable physical pain, . . . Fourteenth Amendment

liberty interests are implicated.

Ingraham v. Wright, 430 U.S. 651, 672 (1977).

The “conscience-shocking” standard is a very high one.

Mere negligence will not suffice and even bad-faith violations

of state law may not be enough. See Gloria, 593 F.3d at 80.

Instead, the conduct most likely to be shocking to the

conscience “is the conduct intended to injure in some way

unjustifiable by any government interest.” Chavez v. Martinez,

538 U.S. 760, 775 (2003) (citation and internal quotation

markets omitted). For school officials, "actions that shock the

conscience typically involve directly inflicting physical

injury.” See Doe v. City of New Bedford, 2015 WL 13229204, at *4

(D. Mass. Dec. 4, 2015) (surveying case law).

3. Application

The Court will first consider whether the student-

plaintiffs other than G.S., who did not file such a claim, can

bring a § 1983 claim against Cummings.

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First, while A.F. brought a § 1983 claim against Cummings,

the complaint does not allege that Cummings inflicted any

physical pain on A.F. A.F.’s claim will be dismissed.

In her motion to dismiss, Cummings adopts and relies upon

the arguments of her co-defendants, including the Town and

school officials. Those defendants assert that all claims

brought by J.L. are time-barred because his cause of action was

no longer tolled after he turned 18 in 2015. They do not

contest J.L.’s incapacitation but insist that, because J.L.’s

mother was appointed to be his legal guardian in 2015, his

mental incapacitation is not dispositive and the statute of

limitations with respect to his claim has since expired. That

is incorrect.

Massachusetts statutory law tolls any statute of

limitations until “after the disability is removed.” M.G.L. c.

260, § 7. The SJC has held that “the appointment of a guardian

has no effect on the protections afforded by the disability

tolling statute.” O'Brien v. Massachusetts Bay Transp. Auth.,

405 Mass. 439, 444 (1989). The statute of limitations for

J.L.’s cause of action therefore continues to be tolled.

Cummings insists that the claims of the remaining student-

plaintiffs must be dismissed because she is entitled to

qualified immunity. A defense of qualified immunity is properly

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considered at the motion to dismiss stage. See Castagna v. Jean,

955 F.3d 211 (1st Cir. 2020).

Determining whether a defendant is entitled to qualified

immunity is a two-step inquiry. A court must decide (1) whether

the facts alleged make out a violation of a constitutional right

and (2) whether the right was “clearly established” at the time

of the defendant's alleged violation. Maldonado v. Fontanes, 468

F.3d 263, 269 (1st Cir. 2009) (citing Pearson v. Callahan, 555

U.S. 223, 232 (2009)). A reviewing court may consider those

steps in whatever order it deems appropriate. Pearson, 555. U.S.

at 242.

Again, in 1977, the Supreme Court explained that

where school authorities, acting under color of state

law, deliberately decide to punish a child for

misconduct by restraining the child and inflicting

appreciable physical pain . . . Fourteenth Amendment

liberty interests are implicated.

Ingraham v. Wright, 430 U.S. 651, 674 (1977). The Third,

Fourth, Sixth, Eighth, Ninth and Tenth Circuits have all relied

on Ingraham to hold that “excessive corporal punishment can

violate a student's substantive due process rights.” P.B. v.

Koch, 96 F.3d 1298, 1302 (9th Cir. 1996) (summarizing case law).

While the First Circuit has not considered this precise issue,

it has stated that a consensus of three or more circuits can

“clearly establish” a right. McCue v. City of Bangor, 838 F.3d

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55, 64 (1st Cir. 2016). It was therefore well established at

the time of the alleged conduct that a teacher could not use

excessive force against a student.

The question remains whether the facts alleged, if accepted

as true, state a violation of constitutional law. Unjustified

infliction of physical injury is the kind of official school

action that courts have previously found to be shocking of the

conscience. See City of New Bedford, 2015 WL 13229204, at *4;

Webb v. McCullough, 828 F.2d 1151, 1159 (6th Cir. 1987)

(reversing district court’s grant of summary judgment regarding

a § 1983 claim against a principal where “it [was] possible that

the [physical] blows were not disciplinary in nature”).

Cummings contends that her conduct simply involved the use

of physical prompts, restraints or the raising of her voice,

which she avers are permissible acts for a teacher tasked with

overseeing a class of disabled students. While some use of

physical prompts is permitted when instructing disabled

students, the complaint alleges a pattern of excessive physical

punishment with respect to at least some student-plaintiffs. See

Ingraham, 430 U.S. at 672.

While a number of student-plaintiffs allege some kind of

physical abuse by Cummings, only N.B., J.L and C.B. allege

conscience-shocking facts and therefore state a claim for

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violation of their substantive due process rights. Again,

conduct only shocks the conscience when it is

so severe [and] so inspired by malice or sadism . . .

that it amounted to a brutal and inhumane abuse of

official power . . . .

Gonzalez-Fuentes v. Molina, 607 F.3d 864, 881 (1st Cir. 2010)

(citation omitted). A brief review of the complaint suggests

that some plaintiffs have alleged that Cummings inflicted

unjustified physical injury on them:

Cummings injured N.B.’s wrists while dragging him. .

Following this incident, N.B.’s pediatrician filed a

complaint with DCF. . . . [A subsequent injury led

N.B.’s pediatrician to again file a complaint with

DCF.] N.B. would often say “no school, teacher hurt

me”.

In August 2005 Cummings put J.L. in a chair, pushed

him tight up against a table and sat directly behind

him. Cummings would not let J.L. move for almost an

hour. Cummings grabbed J.L. under the arms several

times, forcing him to sit up. During this time, J.L.

was screaming. As a result of this incident, J.L.

developed broken blood vessels in his eyes. An

assistant teacher asked Cummings to send J.L. to the

school nurse to be seen for his eyes, but Cummings

refused to allow this to happen.

C.B. came home from school on multiple occasions with

bruises and scratches on his face and back. He also

had bruises on his side and legs. On one occasion,

C.B. came home with a large bruise in the area of his

tailbone. C.B. told his mother that Cummings had

pushed him.

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The remaining student-plaintiff allegations, while

troubling, do not meet the demanding conscience-shocking

standard.

In summary, N.B., J.L. and C.B. state plausible claims

under § 1983 against Cummings. Cummings is not entitled to

qualified immunity with respect to those claims. The other

student-plaintiffs’ § 1983 claims against Cummings will be

dismissed.

G. Count VIII (Assault and Battery, Cummings)

All student-plaintiffs except G.S. have brought assault and

battery claims against Cummings. As discussed supra, J.L.’s

claim is not time-barred. Under Massachusetts law assault and

battery

is the intentional and unjustified use of force upon

the person of another, however slight, or the

intentional doing of a wanton or grossly negligent act

causing personal injury to another.

Commonwealth v. McCan, 277 Mass. 199, 203 (1931).

Student-plaintiffs allege that Cummings committed the tort

of assault and battery without legal justification, cause,

excuse or privilege.

Cummings responds that the claims fail because teachers are

permitted to use physical prompts. She insists that her conduct

was in line with the intervention practices identified in the

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Applied Behavioral Analysis (“ABA”) protocol. Under the ABA, a

teacher may “use physical prompts, including touching, guiding,

and blocking,” to assist students. Doe v. Dep't of Children &

Families, 2014 Mass. Super. Lexis 216, at *2 (Dec. 8, 2014).

The Court rejects Cummings’s contention that her use of

force was so clearly justified under Massachusetts law and the

ABA protocol that the complaint does not present a plausible

claim.

H. Count IX (MCRA, Cummings)

All student-plaintiffs except G.S. have brought claims

pursuant to the Massachusetts Civil Rights Act, M.G.L. c. 12

§ 11I (“MCRA”) and allege that Cummings violated their civil

rights “by . . . use of threats, intimidation and coercion.”

1. Standard

To establish a claim under the MCRA, a plaintiff must prove

that

(1) the exercise or enjoyment of some constitutional

or statutory right; (2) has been interfered with, or

attempted to be interfered with; and (3) such

interference was by threats, intimidation, or

coercion.

Currier v. Nat’l Bd. of Med. Examiners, 462 Mass. 1, 12 (2012).

The MCRA is analogous to § 1983 claims with the added

requirement of interference by use of threats, intimidation, or

coercion. See Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir.

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2010). Under the statute, the SJC define “threats” to mean

“intentional exertions of pressure that would make another

fearful or apprehensive of injury or harm.” Meuser v. Fed.

Express Corp., 564 F.3d 507, 519 (1st Cir. 2009).

“Intimidation” requires "putting in fear for the purpose of

compelling or deterring conduct.” Id. “Coercion” is defined as

force that is either physical or moral which “constrain[s]

[someone] to do against his will something he would not

otherwise have done." Id.

The standard for determining whether conduct constitutes

threats, intimidation or coercion is an objective, reasonable

person standard. Currier, 462 Mass. at 13. The mere violation

of a protected right by itself is insufficient to establish a

claim under the MCRA. Id.

2. Application

The MCRA claims of student-plaintiffs except for N.B., J.L.

and C.B. will be dismissed because their § 1983 claims will be

dismissed. See Raiche, 623 at 40. The Court will simply

determine whether N.B., J.L. and C.B. plausibly allege that

Cummings interfered with the exercise or enjoyment of some

constitutional or statutory right “by threats, intimidation, or

coercion.” Currier, 462 Mass. at 12. She is not entitled to

qualified immunity with respect to the remaining plaintiffs’

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MCRA claims for the same reasons that she is not entitled to

qualified immunity for their § 1983 claims.

It would be premature to dismiss the MCRA claims of N.B.,

J.L. and C.B. at this stage because they have plausibly alleged

that Cummings violated their substantive due process rights. An

objective, reasonable jury could find that Cummings violated

those rights through use of threats, intimidation or coercion as

defined by the SJC.

All Count IX claims against Cummings other than those

brought by N.B., J.L. and C.B. will be dismissed.

I. Count X (Section 1983, Fitzgerald)

Student-plaintiffs have brought § 1983 claims against

Fitzgerald in Count X but that Count has been dismissed by joint

stipulation with respect to plaintiffs C.B., J.L. and G.S.

The complaint does not allege that Fitzgerald personally

abused the student-plaintiffs. Instead, it suggests that, by

failing to intervene while Cummings physically and emotionally

abused student-plaintiffs, Fitzgerald violated the students’

Fourteenth Amendment rights.

The remaining § 1983 claims against Fitzgerald will be

dismissed. In D’Agostino, another session in this Court

confronted a similar claim at the summary judgment stage after a

plaintiff brought a § 1983 claim against an assistant teacher

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because she failed to intervene when a teacher sexually harassed

her. See Doe v. D’Agostino, 367 F. Supp. 2d 157, 172-73 (D.

Mass. 2005). That session held that the assistant teacher could

not be held liable when she was neither accused of abusing the

minor-plaintiff herself nor of being the supervisor of the

alleged abuser. Id. While that analysis occurred at a later

stage in the case, the same logic applies. In their complaint,

plaintiffs do not allege that Fitzgerald personally abused any

pupil or that she supervised Cummings.

Because student-plaintiffs do not present a plausible §

1983 claim against Fitzgerald, the Court declines to consider

the applicability of the doctrine of qualified immunity.

J. Count XI (Section 1983, Talbot)

G.S. brings a § 1983 claim against Talbot and alleges that

Talbot violated his substantive due process rights when she

abused him. Again, the entire claim against Talbot is contained

in a single, two-sentence paragraph in which G.S. accuses Talbot

of squeezing his arm and neck and rubbing his chest in an

aggressive matter.

Such allegations, even if accepted as true, do not amount

to “stunning” evidence of misconduct or shock the conscience.

See Varney v. Richards, 2015 WL 2381161, at *3 (D. Me. May 19,

2015) (ill-defined allegations of abuse by education technician

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“simply [did] not describe the conscience-shocking conduct that

is necessary to sustain a constitutional claim” (emphasis in

original)); see also Muskrat v. Deer Creek Pub. Schs., 715 F.3d

775, 787 (10th Cir. 2013) (finding at summary judgment stage

that a teacher’s slaps on student’s cheek and arm and physical

restraint of student did not rise to level of constitutional

tort). G.S. has failed to state a plausible substantive due

process claim and Count XI will therefore be dismissed.

K. Count XII (Assault and Battery, Talbot)

Talbot did not seek to dismiss Count XII and did not file

an answer as required by Fed. R. Civ. P. 12(a)(1)(A). Talbot

will be given 14 days from the date of this memorandum and order

to file responsive pleadings or otherwise be defaulted.

M. Count XIII (MCRA, Talbot)

Because G.S.’s § 1983 claim against Talbot will be

dismissed, so also will be his MCRA claim. S. Middlesex

Opportunity Council, Inc. v. Town of Framingham, 2008 WL

4595369, at *20 (D. Mass. Sept. 30, 2008) ("[T]here is no

indication that the MCRA was intended to provide broader relief

than that provided by [Section] 1983.").

N. Count XVII (Loss of Consortium)

Finally, parent-plaintiffs bring claims for loss of

consortium against all defendants pursuant to M.G.L. c. 231,

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§ 85X (“Section 85X”). The complaint alleges that each student-

plaintiff is intellectually disabled and totally dependent on

his or her parents for support because of the conduct of

defendants.

1. Standard

Under Massachusetts law,

[t]he parents of a minor child or an adult child who

is dependent on his parents for support shall have a

cause of action for loss of consortium of the child

who has been injured against any person who is legally

responsible for causing such injury.

Mass. Gen. Laws c. 231, § 85X.

Section 85X presents a demanding standard. Parents may only

recover only if their child’s injuries

are of such severity and permanence as to render [her]

physically, emotionally, and financially dependent on

them and that, as a result, their lives have been

significantly restructured and their expectations of

enjoying those experiences normally shared by parents

and children have been seriously impaired.

Reckis v. Johnson & Johnson, 471 Mass. 272, 303 (2015) (quoting

Monahan v. Methuen, 408 Mass. 381, 388-389 (1990)).

The Court must therefore determine whether there is a

plausible claim that the impacted students will “remain

dependent upon [their] parents, physically, emotionally, and

financially, for the indefinite future.” Id. at 303 (internal

citation and quotation marks omitted). While a claim of loss of

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consortium is an independent cause of action, it is “derivative

in nature [and therefore requires] an underlying tortious act.”

Thomas v. Town of Chelmsford, 267 F. Supp. 3d 279, 315 (D. Mass.

2017) (citation omitted).

2. Town and school officials

Because all tort claims against the Town of Wilmington and

the school officials will be dismissed and a loss of consortium

claim is derivative in nature, plaintiffs’ claim for loss of

consortium will be dismissed as well.

3. Cummings

Cummings seeks dismissal on the following grounds: 1) the

claims brought by the parents of A.F., C.L., J.L., C.B. and C.C.

are time-barred; 2) the complaint does not sufficiently allege

that the injuries suffered by student-plaintiffs are permanent;

and 3) the claims fail because no underlying tort claim

survives. The Court will consider those arguments in turn.

A cause of action for loss of consortium is subject to a

three-year statute of limitations. Mass. Gen. Laws ch. 260, §

2A. “While loss of consortium and the underlying claim will

usually accrue at the same time, this may not always be true.”

Genereux v. Am. Beryllia Corp., 577 F.3d 350, 363 (1st Cir.

2009). Plaintiffs, however, give the Court no reason to stray

from the general rule. Accordingly, to avoid being time-barred,

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the underlying incidents must have occurred after March 23,

2020, or three years prior date on which plaintiffs filed their

complaint.11

Based on the allegations made in the complaint, the claims

of the parents of A.F., C.L., J.L., C.B. and C.C. all accrued

well before March 23, 2020. Because the claims for loss of

consortium are brought by the parent-plaintiffs individually

rather than on behalf of student-plaintiffs, the statute of

limitations is not tolled until the minor children reach the age

of majority. Cummings is correct that the claims of those

parent-plaintiffs are time-barred.

That leaves for consideration only the claims for loss of

consortium brought by the parents of N.B., R.C.1, R.C.2 and

R.F.12 Cummings asserts that even if the Court finds that she

caused those students to suffer injury, their injuries were not

so permanent as to render the students “physically, emotionally,

and financially dependent” on their parents. Reckis, 471 Mass.

at 303 (quoting Monahan, 408 Mass. at 389).

11 Neither party points out that the SJC tolled all civil statutes of

limitations between March 17, 2020 and June 30, 2020 due to the COVID-19

pandemic. See Shaw's Supermkts., Inc. v. Melendez, 488 Mass. 338, 341 (2021),

but, in any event, such a tolling period would have no effect on the outcome

of this analysis.

12 As noted supra, the claims of G.S. against Cummings will be dismissed

because there is no suggestion in the complaint that Cummings and G.S. had

any interaction.

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The Court agrees with Cummings that the allegations in the

complaint cannot support loss of consortium claims because the

remaining parent-plaintiffs fail to allege plausibly that

Cummings’s conduct resulted in any permanent injury. The

complaint: 1) concedes that after R.C.1’s parents removed him

from Cummings’s classroom, his “regressions ceased and he began

making significant improvements,” 2) does not suggest that the

injuries of R.C.2 or R.F. “are of such severity and permanence”

that the student-plaintiffs are emotionally, physically and

financially dependent on their parents and 3) alleges that,

while N.B. is still in trauma therapy because of Cummings’s

abusive conduct, it is also true that N.B.’s condition has

improved considerably and that he hasn’t suffered any long-term

physical or financial harm.

The complaint does claim that each student-plaintiff “is

totally dependent on [their] parents for support” but such a

conclusory allegation does not, by itself, prevent dismissal of

an insufficient claim. See Iqbal, 556 U.S. at 678-79.

In summary, all of parent-plaintiffs’ loss of consortium

claims against Cummings will be dismissed. The Court declines

to consider Cummings’s argument that all claims fail due to the

dismissal of the underlying tort claims.

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4. Talbot

Talbot seeks dismissal of G.S.’s pending loss of consortium

claim on the grounds that 1) she cannot be held liable because

municipalities cannot be sued under Section 85X and 2) the claim

of the parents of G.S. is time-barred. Both arguments are

unavailing.

The Court agrees with Talbot that municipalities cannot be

held liable under Section 85X but Talbot is not a municipality.

Talbot is a “person” for the purposes of Section 85X and can

therefore be held liable. See Thomas, 267 F. Supp. 3d at 315

(holding plaintiffs could not bring loss of consortium claim

against town but could bring claim against public school

teachers).

The loss of consortium claim against Talbot also is not

time-barred. The complaint alleges that Talbot physically

abused G.S. “[i]n 2019 and 2020,” and claims one specific

incident occurred “[i]n March 2020.” Talbot argues that because

the complaint was originally filed on March 23, 2023, to state a

claim the underlying conduct must have occurred after March 23,

2020. She asserts that the incident in question occurred on

March 5, 2020, but, as noted above, the SJC tolled all civil

statutes of limitations from March 17, 2020 through June 30,

2020, see Shaw's Supermkts., Inc. v. Melendez, 488 Mass. 338,

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341 (2021), and in this case that makes all the difference. The

complaint was filed within the applicable statute of

limitations.

As the Court noted supra, Talbot will be given 14 days to

file responsive pleadings and the Court will therefore withhold

judgment on the loss of consortium claim, which is derivative in

nature.

5. Fitzgerald

The underlying tort claims against Fitzgerald will be

dismissed. Because the remaining loss of consortium claims

against Fitzgerald are derivative in nature, they will be

dismissed as well.

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ORDER

For the foregoing reasons,

- the motion to dismiss of the Town of Wilmington and

the defendant school officials (Docket No. 17) is

ALLOWED;

- the motion to dismiss of defendant Fitzgerald

(Docket No. 20) is ALLOWED;

- the motion to dismiss of defendant Talbot (Docket

No. 29) is, with respect to Counts IV, V, XI, XIII,

and XVII, ALLOWED. Talbot shall, within 14 days of

this order, file responsive pleadings to Count XII

or otherwise be defaulted. The Court withholds

judgment on Talbot’s motion to dismiss Count XVII

because it is derivative in nature;

- the motion to dismiss of defendant Cummings (Docket

No. 32) is

with respect to Count IV, ALLOWED;

with respect to Count V, as to C.B, R.C.1,

R.C.2, A.F., J.L., G.S., C.C. and R.F.,

ALLOWED, but, as to N.B. and C.L., DENIED;

with respect to Count VII, as to C.L., R.C.1,

R.C.2, A.F., C.C. and R.F., ALLOWED, but, as to

J.L., N.B. and C.B., DENIED;

with respect to Count VIII, DENIED;

with respect to Count IX, as to C.L., R.C.1,

R.C.2, A.F., C.C. and R.F., ALLOWED, but, as to

J.L., N.B. and C.B., DENIED; and

with respect to Count XVII, ALLOWED.

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- the motion of Cummings for oral argument (Docket No.

34) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated: March 4, 2024

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