LEWIS v. SPURWINK SERVICES INC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

GRETCHEN LEWIS and )

RANDY LEWIS, )

)

Plaintiffs, )

) Docket No. 2:22-cv-00054-NT

v. )

)

SPURWINK SERVICES, INC., )

)

Defendant. )

ORDER ON DEFENDANT’S MOTION TO DISMISS

Before me is the Defendant’s Motion to Dismiss the Plaintiffs’ Complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state

a claim upon which relief may be granted. (“Def.’s Mot.”) (ECF No. 5). For the

reasons stated below, the motion to dismiss is DENIED.

BACKGROUND1

Plaintiffs Gretchen and Randy Lewis are the parents and legal guardians of

Sean Lewis. Compl. ¶¶ 1–2 (ECF No. 1). Sean is an adult who is non-verbal and

significantly developmentally disabled. Compl. ¶ 2. Sean has been diagnosed with

multiple physical and cognitive disabilities, including autosomal deletion syndrome,

seizure disorder, and autism. Compl. ¶ 2.

Defendant Spurwink Services, Inc. (“Spurwink”) is a nonprofit corporation

that provides, among other things, residential services for adults with intellectual

1 The facts below are drawn from the allegations in the Complaint, which I take as true for the

purposes of deciding a motion to dismiss. Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021).

disabilities in Maine. Compl. ¶¶ 3, 6. Sean lived in a Spurwink residential program

in Portland with two other residents with disabilities from 2012 until June of 2017.2

Compl. ¶ 9. Spurwink provided three staff members to care for the three residents,

including Sean, at all times, including overnight. Compl. ¶ 11. Spurwink received

compensation from the Maine Department of Health and Human Services (“DHHS”)

and/or other state or federal governmental agencies to provide services for Sean.

Compl. ¶ 10. The Plaintiffs entrusted Spurwink with the care and supervision of their

son, who lacked the ability to care for himself, and while under Spurwink’s care, Sean

was subject to Spurwink’s supervision, authority, and control. Compl. ¶ 12. All of

Spurwink’s professional staff members charged with “responsibility for the care or

custody of an incapacitated or dependent adult”—like Sean Lewis—are mandated

reporters under Maine law. Compl. ¶ 8 (quoting 22 M.R.S. § 3477).

Around June 6, 2016, Gretchen Lewis discovered that Sean had suffered a

broken toe, but, because Sean is non-verbal and has very limited cognitive skills, he

could not explain what happened to him. Compl. ¶ 13. She asked Spurwink staff what

had happened, but they claimed they did not know what had caused Sean’s broken

toe. Compl. ¶ 14. About two weeks later, the executive director from Sean’s

therapeutic horse-riding program contacted Gretchen to inform her that she had

discovered very unusual bruising on Sean’s body, and, as a mandated DHHS reporter,

she had reported the bruising to the Adult Protective Services division at DHHS.

2 Sean was first admitted into a different Portland-based Spurwink residential program in 2011

when he was fourteen years old, but was then transferred in 2012. Compl. ¶ 9 (ECF No. 1).

Compl. ¶¶ 7, 15. Four days later, Spurwink staff contacted Gretchen to report that

they discovered Sean had serious bruises on his forearm; the staff claimed they did

not know the causes of the bruising. Compl. ¶ 16. The nurse working for Sean’s

primary care provider reported the injuries to DHHS Adult Protective Services four

days later on June 24, 2016. Compl. ¶ 17. On or about June 27, 2016, Gretchen visited

Sean at Spurwink and discovered very serious bruising under Sean’s right eye and

several other bruises all over his body. Compl. ¶ 18. Sean was taken to an emergency

clinic later that day, where the doctor diagnosed him with multiple contusions.

Compl. ¶ 19. Spurwink staff again claimed that they did not know the causes of the

bruising. Compl. ¶ 18.

On July 1, 2016, Spurwink staff called Gretchen and told her that Sean had

fallen and hit his head, and that he was bleeding from the ear and forehead as a

result of serious lacerations. Compl. ¶ 20. Spurwink staff took Sean to the emergency

room where doctors sedated Sean and stitched his ear. Compl. ¶ 21. On or about July

23, 2016, Spurwink staff called Gretchen to inform her that they discovered serious

bruising under both of Sean’s eyes; they claimed they did not know the causes of the

bruising. Compl. ¶ 22.

On or about August 20, 2016, Spurwink staff called Gretchen to inform her

that they had discovered serious bruising all over Sean’s stomach and torso. Compl.

¶ 23. Staff transported Sean to the emergency room, where Gretchen and Randy

Lewis met them. Compl. ¶ 23. Staff claimed they did not know the causes of the

bruising. Compl. ¶ 23.

On August 23, 2016—more than ten weeks after Spurwink learned of the first

of many reports of unexplained, serious, on-site physical injuries to Sean—Sean was

examined by a nurse practitioner at Spurwink’s Child Abuse Program.3 Compl. ¶ 24.

The nurse practitioner interviewed Spurwink staff and Sean’s parents, consulted

with the Program’s medical director, and reviewed photos, medical records, and

incident reports. Compl. ¶ 24. The Spurwink Child Abuse Program produced a nine-

page report on August 30, 2016, which included the following assessment:

While it remains possible, although less likely, that a medical condition

may be the cause of unexplained bruising, one must continue to be very

suspicious that he is being physically abused . . . A thorough

investigation is recommended . . . Given the severity of the unexplained

injury, there are concerns that this adolescent is at risk for future, more

serious, perhaps even life threatening injury without appropriate safety

planning and investigation.

Compl. ¶ 25.

The report also recommended a second opinion by an unaffiliated specialist, so

a pediatrician specializing in childhood abuse and trauma at Children’s Hospital at

Dartmouth in New Hampshire reviewed Sean’s file and the Spurwink Child Abuse

Program materials. Compl. ¶¶ 25–26. Among other findings, this pediatrician

concluded that it was very likely that Sean was physically abused and that there was

a very serious risk of future life-threatening injuries. Compl. ¶ 26. On December 6,

2016, DHHS issued a report concluding that, although DHHS “suspected abuse,” it

could not substantiate the reports of abuse and neglect “because the child abuse

3 It is not clear from the Complaint why Sean’s case was handled by Spurwink’s Child Abuse

Program. According to paragraph 9 of the Complaint, Sean was fourteen years old in 2011; the events

alleged in the Complaint began in the summer of 2016, five years later, at which time Sean presumably

would have been considered an adult.

specialists could not 100% conclude that the bruising was a result of the abuse.”

Compl. ¶ 27.

On or about April 16, 2017, Spurwink staff transported Sean to his parents’

home in Augusta. Compl. ¶¶ 1, 28. Gretchen discovered serious bruising on Sean’s

arm and called Spurwink staff, but they again claimed not to know the causes of the

bruising. Compl. ¶ 28. Gretchen brought Sean to Maine General Hospital in Augusta,

where X-rays confirmed that he had a fractured arm. Compl. ¶ 29. He underwent

emergency surgery, and a plate and screws were needed to hold the bones together.

Compl. ¶ 29.

Spurwink employees and agents did not report any of Sean’s injuries to DHHS

at any time while he was in Spurwink’s care. Compl. ¶ 32. In June of 2017, Sean’s

parents moved Sean from Spurwink to an assisted living facility in Belfast. Compl.

¶ 30. Since then, there have been no similar incidents of inexplicable physical injury

to Sean. Compl. ¶ 31.

On February 24, 2022, Plaintiffs Gretchen and Randy Lewis filed their three-

count Complaint against Spurwink. Compl. In the one federal claim, Count III, the

Plaintiffs assert disability discrimination in violation of section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (“§ 504”). Compl. ¶¶ 48–53. They allege

that Spurwink, a recipient of federal funding, violated § 504’s antidiscrimination

provisions when it:

denied Sean the opportunity to participate in or benefit from services

free from abuse, neglect, injury, harm, or discrimination; failed to

provide Sean with the opportunity to participate in or benefit from

services equal to those afforded others; failed to provide Sean with aid,

benefits, or services equal to and/or as effective as those afforded others;

aided or perpetuated discriminatory acts committed by Spurwink

employees and agents; and otherwise limited Sean’s enjoyment of rights,

privileges, advantages, or opportunities to be free from discrimination,

abuse, neglect, or injury.

Compl. ¶¶ 50, 52.

The Plaintiffs also bring two state law claims against Spurwink. In Count I,

asserting negligence, they allege that Spurwink breached the duty of care owed to

Sean by failing to provide him with a reasonably safe residence or professional care

and failing to protect him from abuse, neglect, and harm (among other things).

Compl. ¶¶ 33–38. Count II asserts a claim of negligent supervision, alleging that

Spurwink owed Sean a duty of care to supervise and control the acts and omissions

of its employees and agents and to prevent them from intentionally or negligently

harming Sean, and that Spurwink breached that duty. Compl. ¶¶ 39–47.

Spurwink now moves to dismiss Count III of the Complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, arguing that the Plaintiffs’ disability

discrimination count fails to state a claim upon which relief can be granted because

the Complaint alleges more than one cause of Sean’s alleged injuries. Def.’s Mot. 5–

7. Spurwink then requests that I decline to exercise supplemental jurisdiction over

the Plaintiffs’ remaining state tort claims. Def.’s Mot. 7–9.

LEGAL STANDARD

Generally, to survive a motion to dismiss for failure to state a claim, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Mehta v.

Ocular Therapeutix, Inc., 955 F.3d 194, 205 (1st Cir. 2020). Under this “make-or-

break standard,” Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st

Cir. 2010), “[a] claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged,” id. (quoting Iqbal, 556 U.S. at 663). “The plausibility

standard is not akin to a probability requirement, but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. (internal quotation marks

omitted) (quoting Iqbal, 556 U.S. at 678).

DISCUSSION

I. Count III – Disability Discrimination under § 504

Section 504 of the Rehabilitation Act provides: “No otherwise qualified

individual with a disability in the United States . . . shall, solely by reason of . . . his

disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial

assistance . . . .” 29 U.S.C. § 794(a). Thus, to allege a claim under § 504, a plaintiff

“must show (1) that she is disabled; (2) that she sought services from a federally

funded entity; (3) that she was ‘otherwise qualified’ to receive those services; and (4)

that she was denied those services ‘solely by reason of her . . . disability.’ ” Lesley v.

Hee Man Chie, M.D., 250 F.3d 47, 53 (1st Cir. 2001) (quoting 29 U.S.C. § 794(a)).

To meet the “solely by reason of his disability” element, an individual with a

disability must show that “(1) there is a causal connection between his disability and

the discriminatory action; and (2) his disability was the only cause of the

discriminatory action.” McCann ex rel. J.M. v. York Sch. Dep’t, 365 F. Supp. 3d 132,

145 (D. Me. 2019) (internal quotation marks omitted) (quoting Shaikh v. Tex. A & M

Univ. Coll. of Med., 739 F. App’x 215, 222 (5th Cir. 2018)).4

“The causal connection between the individual’s disability and the discriminatory

action ‘need not be direct’ in order to satisfy the ‘sole reason’ requirement: it is

sufficient that the disability caused the individual to do or not do something, which,

in turn, caused the discriminatory action.” Shaikh, 739 F. App’x at 222 (quoting Sedor

v. Frank, 42 F.3d 741, 746 (2d Cir. 1994)).

A. The Plaintiffs’ § 504 Allegations

The Complaint alleges—and Spurwink does not dispute—that Sean has a

disability and that Spurwink, where Sean obtained services that he qualified for

because of this disability, receives federal funding. Compl. ¶¶ 2, 9–10, 50–51; see

Def.’s Mot. 6. But Spurwink argues that the Complaint does not plausibly allege the

fourth element, that Sean was denied the benefits of any Spurwink program “solely

by reason of his disability.” Def.’s Mot. 6 (quoting McCann, 365 F. Supp. 3d at 145).

According to Spurwink, the Complaint fails to demonstrate (a) a causal connection

4 Exactly how to apply § 504’s “sole causation test” remains “an open question” in the First

Circuit—that is, whether “disability discrimination need only be a reason, as opposed to the sole

reason.” Leary v. Dalton, 58 F.3d 748, 752 (1st Cir. 1995) (emphasis added). Other courts have noted,

however, that the “ ‘solely by reason of” inquiry is designed to weed out § 504 claims where an employer

can point to conduct or circumstances that are causally unrelated to the plaintiff’s

handicap.” Teahan v. Metro-N. Commuter R.R. Co., 951 F.2d 511, 516 (2d Cir. 1991) (collecting cases

involving other, non-disability-related, reasons such as employer’s budget constraints and

restructuring, plaintiff’s abusive behavior, and other job candidate having greater work experience

and better prior work record than plaintiff); see Jenkins v. Bos. Hous. Ct., 350 F. Supp. 3d 1, 6 (2018)

(“Because [plaintiff] has alleged various grounds for his termination, not only disability, the

Rehabilitation Act claim must fail.”).

between Sean’s disability and the alleged discriminatory action or (b) that his

disability was the only cause of the discriminatory action given that the Complaint

alleges facts showing that his unexplained injuries were “also possibly caused by

abuse or neglect or a medical condition.” Def.’s Mot. 6–7.

At this early stage, however, the Plaintiffs need not “demonstrate” anything;

they must plausibly allege. Read generously, the Complaint sketches out several

discriminatory actions that were allegedly taken by Spurwink because of Sean’s

disability. To start, the Complaint alleges that, “through the acts and omissions of its

employees and agents,” Spurwink deprived Sean of its “services free from abuse,

neglect, injury, harm, or discrimination.” Compl. ¶ 52. Taken with the other factual

allegations, the Plaintiffs seem to be alleging that Spurwink may be vicariously liable

for the actions of its agents. Although this theory was not briefed by the parties, it is

a plausible avenue of recovery for the Plaintiffs. Other courts in the First Circuit have

held that an employer may be held vicariously liable for an employee’s violation of

§ 504 of the Rehabilitation Act and the Americans with Disabilities Act (“ADA”). See

Fortin ex rel. TF v. Hollis Sch. Dist., No. 15-CV-179-JL, 2017 WL 4157065, at *5–6

(D.N.H. Sept. 18, 2017) (citing cases).5 Here, although the exact causes of Sean’s

5 In Fortin ex rel. TF v. Hollis School District, No. 15-CV-179-JL, 2017 WL 4157065 (D.N.H.

Sept. 18, 2017), the court denied the employer school district’s motion for summary judgment on the

issue of vicarious liability. The plaintiffs had brought claims under the Rehabilitation Act and the

Americans with Disabilities Act (“ADA”) for the discriminatory acts of a paraprofessional assigned as

one-on-one support for a student with autism and speech disorders. Id. at *1–2. The paraprofessional

was alleged to have physically abused the student. Id. In rejecting the school district’s argument

against vicarious liability, the court noted that other federal courts have recently concluded that an

employer may be held vicariously liable in such cases if the plaintiff demonstrates “that the

perpetrator of the alleged abuse . . . was deliberately indifferent to her rights.” Id. at *5 (quoting K.T.

v. Pittsburg Unified Sch. Dist., 219 F. Supp. 3d 970, 981 (N.D. Cal. 2016); see also Reed v. State of Ill.,

injuries are not known, one inference readily apparent in the Complaint is that one

of his Spurwink employee caretakers was physically abusing him, because when he

left Spurwink, the inexplicable injuries stopped.6 The Complaint thus sets forth

sufficient facts to allow the Plaintiffs’ claim based on Spurwink’s vicarious liability to

proceed.

In addition, the Complaint alleges that Spurwink discriminated against Sean

by failing to provide him “with the opportunity to participate in or benefit from

services equal to those afforded others” and “with aid, benefits, or services equal to

and/or as effective as those afforded others.” Compl. ¶ 52. I take this as alleging that

Sean was being discriminated against because of his disability. The Complaint

alleges at least eight instances of Sean suffering unexplained injuries while under

the care and supervision of Spurwink staff, including repeated serious bruising and

broken bones on two separate occasions. Other than one reported fall in July that

resulted in Sean needing stitches on his head, Spurwink staff claimed that they did

not know what was causing any of Sean’s recurring injuries over the course of ten

months. The Complaint further alleges that Spurwink staff failed to report the

No. 12-CV-7274, 2016 WL 2622312, at *3 (N.D. Ill. May 9, 2016) (“[O]ther courts have found respondeat

superior liability to apply to lawsuits under Title II of the ADA or section 504 of the Rehabilitation

Act.”).

6 Contrary to the Defendant’s contention, the Plaintiffs’ inability to pinpoint the exact cause of

Sean’s bruising does not doom Count III. In pleading their § 504 claim, the Plaintiffs do not provide

any non-disability-related reason that might undercut the allegation that Sean was discriminated

against because of his disability—Sean’s disability is the only reason alleged in the Complaint. Cf.

Forestier Fradera v. Mun. of Mayagüez, 440 F.3d 17, 23 (1st Cir. 2006) (holding in ADA case that there

was no reasonable basis for inferring that the defendants’ delay in installing an elevator was because

of the plaintiff’s disability where the plaintiff himself attributed the elevator delay “solely to political

discrimination on account of his membership in the minority party”).

injuries to DHHS as mandated by law. Because of his disabilities, Sean is non-verbal

with very limited cognitive skills so he could never tell anyone the cause of his serious

injuries. This line of allegations supports another plausible inference, which factual

development could bear out, that it was because of Sean’s disability—specifically, the

fact he is non-verbal—that the injuries continued as they did.

The conclusion that the Plaintiffs have pled enough to survive a motion to

dismiss follows from a recent § 504 case in this Court, McCann ex rel. J.M. v. York

School Department, 365 F. Supp. 3d 132 (D. Me. 2019), which both parties relied on

in their briefs. In that case, the parent plaintiffs alleged that the defendant school

knew that their son’s disability manifested in fear and anxiety, and that the son had

reported to school officials that he was being bullied and another student had

threatened to have him beat up. Id. at 138, 145. After the son was assaulted during

school hours, the parents sued the school. Id. at 138. In denying the school’s motion

to dismiss the § 504 claim, Judge Levy held that the complaint plausibly alleged that

the school’s “failure to fully investigate and address” the son’s bullying reports “was

because of J.M.’s disability” where it was plausible that the school “discounted the

seriousness” of the reports because the school saw them as “manifestations” of the

son’s disability.7 Id. at 145. The Court noted that “ ‘[t]he possibility of additional, or

alternative, reasons . . . does not detract from the plausibility of the allegation’ that

7 The manifestation of a disability suffices to meet the “solely by reason of disability”

requirement under § 504, as the Second Circuit explained with the following hypothetical: “An

employee has one leg shorter than the other, causing him to limp, which we assume is a ‘handicap’

under § 504. The limp causes the worker to make a loud ‘thump’ when he takes a step. He is fired, his

employer says, because of the thumping.” Teahan v. Metro-North Commuter R.R. Co., 951 F.2d at 516.

In that case, even if the employer’s action was because of the thump, the thump is a “symptomatic

manifestation of the handicap [the limp].” Id. at 517.

J.M.’s disability was the ‘sole reason’ for the School Department’s response (or lack

thereof).” Id. (quoting Shaikh, 739 Fed. App’x at 223). “Therefore, the fact that J.M.’s

physical injuries were caused by another student does not mean that the alleged

discrimination did not occur ‘solely by reason of his disability.’ ” Id. at 146.

As was the case in McCann, here the Plaintiffs have plausibly alleged that

Spurwink discriminated against Sean because of Sean’s disability by not providing

him with services equal to those given others. The allegations and the reasonable

inferences I draw from them suggest that Sean’s inability to tell others what was

happening to him is a manifestation of his disabilities. Whatever the exact cause of

Sean’s physical injuries, the Plaintiffs plausibly assert a scenario whereby Sean

would not have endured repeated injuries under Spurwink’s care if he did not have a

disability that made him non-verbal. They therefore have adequately pled that the

discrimination occurred solely by reason of Sean’s disability.

The Plaintiffs also allege that Spurwink violated the Rehabilitation Act by

“aid[ing] or perpetuat[ing] discriminatory acts committed by Spurwink employees

and agents” and “otherwise limiting Sean’s enjoyment of rights, privileges,

advantages, or opportunities to be free from discrimination, abuse, neglect, or injury.”

Compl. ¶ 52. Unlike the vicarious liability allegations, this appears to be an allegation

that Spurwink is directly liable for its own actions in permitting the alleged abuse to

occur. The Complaint alleges that Spurwink did not investigate until more than ten

weeks after the first injury, and that further injuries occurred to Sean at Spurwink

even after the investigation raised the red flag that Sean was at risk for future serious

injuries. The ready inference is that Spurwink’s actions and inactions directly caused

the continued harm to Sean where Spurwink failed to timely monitor, investigate,

and intervene.

At this stage, the Plaintiffs have sufficiently pled several theories of recovery

that could be viable under the Rehabilitation Act.

B. Intentional Discrimination under § 504

In addition, the Defendant argues that, because “intentional discrimination” is

needed to state a § 504 claim for compensatory damages, the Plaintiffs’ claim “is

inconsistent with and cannot be pleaded in the alternative to negligence-based claims

or causes for a plaintiff’s alleged harm.” Def.’s Mot. 6. But the Defendant offers no

citation for this proposition, which runs counter to the Federal Rules of Civil

Procedure, which permit a party to “set out 2 or more statements of a claim . . .

alternatively or hypothetically” and “state as many separate claims . . . as [the party]

has, regardless of consistency.” Fed. R. Civ. P. 8(d)(2)–(3).

The Defendant also argues that the Complaint must allege action taken by

Spurwink that was intentionally discriminatory. Def.’s Reply to Pls.’ Opp’n 1, 3 (ECF

No. 7). Again, the Defendant does not provide a citation. The Plaintiffs suggest that

the standard can be met with deliberate indifference and maintain that proof of

discriminatory intent comes in later, at trial in order to recover compensatory

damages, and is not a prima facie element that must be made out at the pleading

stage. See Pls.’ Opp’n to Mot. to Dismiss 3 (ECF No. 6).

What standard the First Circuit would employ in a § 504 Rehabilitation Act

claim is unclear, and the parties have not adequately briefed the issue. Other district

courts have recognized that “[t]he First Circuit Court of Appeals has not directly

addressed the question of which standard applies to show intentional discrimination”

but has “suggested that a plaintiff ‘may’ need to make ‘some showing of deliberate

indifference’ ” to prevail under § 504. Fortin, 2017 WL 4157065, at *4 (quoting Nieves-

Márquez v. Puerto Rico, 353 F.3d 108, 125 (1st Cir. 2003)); see Doe v. Bradshaw, 203

F. Supp. 3d 168, 191 (D. Mass. 2016) (“Discrimination claims under the

Rehabilitation Act and the ADA require a showing of disability-based animus. The

First Circuit has suggested that deliberate indifference is enough to satisfy this

requirement of intentional discrimination.” (internal citation and quotation marks

omitted)). The majority of Courts of Appeals have held that a plaintiff may prove the

discriminatory intent needed to prevail on a claim for compensatory damages under

the Rehabilitation Act by showing that a defendant was deliberately indifferent to

the plaintiff’s statutorily protected rights. See Loeffler v. Staten Island Univ. Hosp.,

582 F.3d 268, 275 (2d Cir. 2009) (“The standard for intentional violations is deliberate

indifference to the strong likelihood of a violation.” (internal quotation marks

omitted)); S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir.

2013) (“We now follow in the footsteps of a majority of our sister courts and hold that

a showing of deliberate indifference may satisfy a claim for compensatory damages

under § 504 of the RA and § 202 of the ADA.”); S.S. v. E. Ky. Univ., 532 F.3d 445, 453

(6th Cir. 2008) (“Davis [v. Monroe County Board of Education, 526 U.S. 629, 645–47

(1999)] requires a showing of deliberate indifference on the part of the school in order

to impose liability, and has been applied to disability-based peer-on-peer harassment

claims brought under the ADA and § 504 by the majority of federal district courts to

have addressed the issue.”); Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir.

2011) (“The district court decided that deliberate indifference was the appropriate

standard for showing intentional discrimination in this type of case. A number of

other circuits have so ruled, and we agree.”); Duvall v. Cnty. of Kitsap, 260 F.3d 1124,

1138 (9th Cir.), as amended on denial of reh’g en banc (9th Cir. 2001) (“To recover

monetary damages under Title II of the ADA or the Rehabilitation Act, a plaintiff

must prove intentional discrimination on the part of the defendant. . . . We now

determine that the deliberate indifference standard applies.”); Barber ex rel. Barber

v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228–29 (10th Cir. 2009) (“Intentional

discrimination does not require a showing of personal ill will or animosity toward the

disabled person; rather, intentional discrimination can be inferred from a defendant’s

deliberate indifference to the strong likelihood that pursuit of its questioned policies

will likely result in a violation of federally protected rights.” (internal quotation

omitted)); McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1147 (11th

Cir. 2014) (“A plaintiff may prove discriminatory intent by showing that a defendant

was deliberately indifferent to his statutory rights.”).

“[D]eliberate indifference in the context of intentional discrimination

comprises two prongs: (1) ‘knowledge that a harm to a federally protected right is

substantially likely,’ and (2) ‘a failure to act upon that likelihood.’ ” Barber, 562 F.3d

at 1229 (quoting Duvall, 260 F.3d at 1139). While it is premature to rule on the

standard that will be applied going forward given the state of the briefing, it is

certainly possible, if not likely, that deliberate indifference will suffice. Drawing all

reasonable inferences in the Plaintiffs’ favor, the Complaint sufficiently alleges

deliberate indifference by Spurwink. Thus, the Complaint states a plausible claim

under § 504, and the Defendant’s motion to dismiss Count III is denied.

II. Counts I and II – State Law Negligence Claims

The Defendant requests that, in the event I dismiss the one federal disability

discrimination claim, I decline to exercise supplemental jurisdiction over the

Plaintiffs’ two state law claims. See Borrás-Borrero v. Corporación del Fondo del

Seguro del Estado, 958 F.3d 26, 36 (1st Cir. 2020) (“[D]istrict courts may decline to

exercise supplemental jurisdiction over pendent state law claims when the anchor

federal claims for those state law claims are dismissed.”). Because I am denying the

Defendant’s motion to dismiss the federal § 504 claim, I retain jurisdiction over the

state tort claims.

CONCLUSION

For the reasons stated above, the Court DENIES the Defendant’s Motion to

Dismiss (ECF No. 5).

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 6th day of December, 2022.