Morgan v. Town of Lexington

United States Court of Appeals
For the First Circuit

No. 15-2174

CHRISTINE MORGAN, next friend and mother of minor, R.M.,

Plaintiff, Appellant,

v.

TOWN OF LEXINGTON, MA; LEXINGTON PUBLIC SCHOOLS; DR. PAUL ASH,
Superintendent, in his official and individual capacities; DR.
STEVEN FLYNN, Principal, in his official and individual
capacities,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

Timothy M. Burke, with whom Jared S. Burke and Law Offices of
Timothy M. Burke were on brief, for appellant.
John J. Cloherty III, with whom Pierce, Davis & Perritano,
LLP was on brief, for appellees.

May 23, 2016
 LYNCH, Circuit Judge. The district court granted a

motion to dismiss brought by the Town of Lexington, Massachusetts

("Lexington"), Lexington Public Schools ("LPS"), its

superintendent, and a principal (collectively "the defendants"),

ending a civil rights suit filed by a mother, Christine Morgan,

who complained that the defendants inadequately responded to the

bullying of her son, R.M., by his middle school peers, in violation

of his federal substantive due process rights. Five pendant state

law claims were also dismissed, and a motion to add a second

federal law claim under Title IX was denied.

The complaint relied upon a theory once suggested by the

United States Supreme Court that when the state creates a danger

to an individual, an affirmative duty to protect might arise.

Noting that this court has never squarely accepted such a theory,

not having been presented with facts supporting a claim, the

district court held that the facts presented here simply do not

give rise to a substantive due process violation. We agree. We

also agree that the conduct alleged does not fall within the scope

of Title IX, which is concerned with actions taken "on the basis

of sex," see 20 U.S.C. § 1681(a), and not undifferentiated

bullying. We affirm.

I.

We draw the facts from Morgan's original and amended

complaints "and the documents incorporated therein." Ouch v. Fed.

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Nat'l Mortg. Ass'n, 799 F.3d 62, 64 (1st Cir. 2015). Where the

complaint characterizes a document, we refer to the document. We

do not attempt to cover all the facts, only those directly

pertinent to the issues.

In the fall of 2011, R.M. was a twelve-year-old student

at a middle school located in Lexington, MA. On or about October 5,

2011, several students pulled R.M. to the ground and beat him,

repeatedly kicking and punching him in the head and stomach. This

was captured on a video given to the administration. The school

investigated. The next day, the principal, Steven Flynn, discussed

the incident with Morgan. He told Morgan that the incident

involved a group of students, known as the "Kool-Aid Club," and

that R.M. had at first agreed to the beating by the students as

part of an initiation into their group. He said that R.M. was not

the aggressor and that R.M. was not in trouble but that he was not

happy with R.M. because he "delay[ed] the investigation." He told

Morgan that because of R.M.'s conduct during the investigation,

R.M. would not be allowed to participate in an upcoming school

track meet.

On October 17, one of the students who had been part of

the Kool-Aid Club incident said to R.M., "You (R.M.) dummy, you

got us in trouble." R.M. was told they would "get him back" for

getting them in trouble. R.M. reported the statements to the

assistant principal, who told him to stay away from those students.

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 During the fall of that year, students repeatedly called

R.M. "Mandex Man," "thunder thighs," and "hungry hippo." R.M. was

"pushed, tripped, punched or verbally assaulted while walking in

school hallways." R.M. was also "table topped," in which "one

person gets down on all fours behind the victim to push the victim

behind the knees, and then one or two other individuals push the

victim so that the victim falls backwards." "[O]n multiple

occasions R.M. had his pants pulled down in front of other students

(male and female), while on school grounds . . . ." On December 21,

R.M. was also pushed into a locker, "which caused him to break his

watch."1

On December 22, 2011, Morgan emailed Principal Flynn

that R.M. did not feel safe at school and was scared to report

bullying for fear of retaliation by his peers. She referred to

the school's anti-bullying policy and the state's anti-bullying

statute.2 The complaint alleges that Principal Flynn replied by

1 The complaint includes other incidents from 2012, such
as R.M. having "his lunch and belongings strewn onto the floor" by
another student and R.M. finding a Facebook page titled "I hate
R.M." that students at his school had "liked."

2 In 2010, Massachusetts enacted anti-bullying
legislation, codified at Massachusetts General Laws ch. 71, § 37O.
The statute prohibits bullying on school grounds, id. § 37O(b) and
requires that school districts "develop, adhere to and update a
plan to address bullying prevention and intervention," id.
§ 37O(d)(1). The record suggests that LPS has developed such a
plan. Of note, however, the legislature made the choice not to
"create a private right of action" through the statute. Id.

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email that the school could not investigate the allegations unless

R.M. himself reported the bullying. What Principal Flynn actually

said in the reply email was, "Is it possible for you to bring

[R.M.] in this morning to meet with [school administrators] to

hear from him the concerns? This will enable us to take action on

the issues."

On December 23, Morgan met with school officials and

reported new information that R.M. had recently given her. This

included R.M.'s general fear of retaliation for having reported

some students and specific retaliation from one of the boys who

had attacked him. She gave the school sufficient information to

start to investigate the allegations. The school official

responded that the school would investigate. And at least by

January 20, 2012, it did.

On January 2, 2012, R.M. again expressed fear that he

would be bullied and refused to go to school. When R.M. did not

show up to school on January 4, 2012, as required by state law,

see Mass. Gen. Laws ch. 76, § 1, Principal Flynn directed at least

one officer of the Lexington Police Department to go to R.M.'s

house. Morgan represented to us that the officer(s) went to R.M.'s

house that day, and that R.M. "viewed this act to be a threat by

Defendant Principal Flynn to intimidate and coerce him to come

§ 37O(i). Morgan alleges that several of the school's actions
contradict LPS's anti-bullying policy.

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back to school." On January 5, 2012, R.M. again did not show up

at school; two officers again went to R.M.'s house to talk with

his mother, and R.M. "experience[d] a panic attack."

Morgan met several times with school administrators

about her concerns for R.M. During a January 6, 2012, meeting

with the assistant principal and a school social worker, Morgan

and R.M. were told that there was not time then to discuss specific

allegations. Principal Flynn investigated R.M.'s allegations and

on January 20, 2012, reported that a student had admitted to

pulling down R.M.'s pants,3 and that others had confirmed that R.M.

had been "table-topped." The complaint alleges that Principal

Flynn told Morgan that none of the students involved would be

disciplined.

In late February 2012, Morgan decided to enroll R.M. in

a private school, where he finished the school year.

Morgan reenrolled R.M. at the public school at issue

here on October 9, 2012. R.M. continued to experience anxiety

about attending there and as a result "missed 112 days of school

from October 9, 2012, through the remainder of the school year."

3 The complaint never alleges what R.M. was wearing under
the pants that were pulled down. At oral argument, counsel for
the defendants noted that fact and referred to the documents Morgan
attached to her complaint as supporting an inference that, at least
during one incident of "pantsing," R.M. had on his gym shorts under
his pants and was not "exposed."

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 On October 3, 2014, Morgan filed a complaint in federal

court against the defendants, alleging (1) a violation of R.M.'s

substantive due process rights under the Fourteenth Amendment

pursuant to 42 U.S.C. § 1983 ("§ 1983") against all defendants;

(2) negligence against all defendants; (3) intentional infliction

of emotional distress against the superintendent and principal;

(4) negligent infliction of emotional distress against both men;

(5) negligent hiring, training, and supervision against Lexington

and LPS; and (6) violations of the Massachusetts Civil Rights Act

against all defendants. The relief sought was compensatory as

well as multiple and/or punitive damages for the alleged failure

of the defendants to respond appropriately to the bullying. The

defendants moved to dismiss for failure to state a claim. See

Fed. R. Civ. P. 12(b)(6). Morgan moved to amend her complaint to

include a Title IX claim. See Fed. R. Civ. P. 15(a). On September

24, 2015, the district court allowed the defendants' motion and

denied Morgan's motion as futile. This appeal followed, in which

Morgan challenges the dismissal of her § 1983 substantive due

process claim and the denial of her motion to amend with the Title

IX claim.

II.

We review the dismissal of Morgan's complaint de novo,

accepting as true all well-pleaded facts and drawing all reasonable

inferences in her favor. Haley v. City of Boston, 657 F.3d 39, 46

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(1st Cir. 2011). "We review denials of motions to amend pleadings

for abuse of discretion," Adorno v. Crowley Towing & Transp. Co.,

443 F.3d 122, 126 (1st Cir. 2006), and "[f]utility of the amendment

constitutes an adequate reason" for a district court to deny such

a motion, Todisco v. Verizon Commc'ns, Inc., 497 F.3d 95, 98 (1st

Cir. 2007). "In assessing futility, the district court must apply

the standard which applies to motions to dismiss under Fed. R.

Civ. P. 12(b)(6)." Adorno, 443 F.3d at 126.

A. § 1983 Substantive Due Process Claim

Morgan's § 1983 claim contends that the defendants

deprived R.M. of a "protected liberty interest in bodily integrity,

specifically, the right to be free from the abuse and injuries"

related to the bullying he endured, in violation of his substantive

due process rights protected under the Fourteenth Amendment.4 To

establish a substantive due process claim, a plaintiff must show

not only a deprivation of a protected right but also that "the

deprivation of this protected right was caused by governmental

conduct." Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005).

In general, "a State's failure to protect an individual against

private violence simply does not constitute a violation of the Due

4 We will not address Morgan's new arguments on appeal
that R.M. has a protected property interest in free public
education, or that the defendants violated his equal protection
rights, neither of which were alleged in the complaint. See
Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 51 n.7 (1st
Cir. 2000).

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Process Clause." DeShaney v. Winnebago Cty. Dep't of Soc. Servs.,

489 U.S. 189, 197 (1989).

Two of our earlier cases affirming dismissal of

substantive due process claims involving juveniles, Hasenfus v.

LaJeunesse, 175 F.3d 68, 71–74 (1st Cir. 1999); Rivera, 402 F.3d

at 35–38, put the instant case into context. In Rivera, a fifteen-

year-old girl witnessed a murder and had been told explicitly that

she would be protected by police if she agreed to testify. 402

F.3d at 31. She agreed; she was not protected; and she was

murdered. Id. at 32. We explained that it is not enough to allege

something shocked the conscience. Id. at 34. The plaintiff had

to show that governmental conduct caused the deprivation of the

right. Id. We said:

[T]he purpose of the Due Process Clause is to
protect the people from the state, not to
ensure that the state protects them from each
other. "The Clause is phrased as a limitation
on the State's power to act, not as a guarantee
of certain minimal levels of safety and
security," [DeShaney, 489 U.S. at 195],
because "[t]he Framers were content to leave
the extent of governmental obligation in the
latter area to the democratic political
processes," id. at 196 . . . .

Id. (third alteration in original).

Even closer to the facts of this case is our decision in

Hasenfus, where a fourteen-year-old student who received a

reprimand from her teacher attempted to commit suicide in an

unattended locker room. 175 F.3d at 69–70. The suit, like this

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one, named school officials as defendants and specifically alleged

a substantive due process violation from their failure to take

steps to prevent the suicide attempt given that the officials knew

that the student had been raped the year before and that there was

a recent rush of student suicide attempts. Id. In that case, the

plaintiffs argued that the school had a relationship with the

student such that it owed her a "special duty of care." Id. at

71. Under that theory, set forth by the Supreme Court in DeShaney,

an affirmative duty to provide protection or care might arise when

the government "so restrains an individual's liberty that it

renders him unable to care for himself, and at the same time fails

to provide for his basic human needs." 489 U.S. at 200; see

Rivera, 402 F.3d at 34. In response to the plaintiffs' argument

in Hasenfus, our court noted that:

The Hasenfuses' position is especially
difficult to accept outright since the Supreme
Court has come pretty close to rejecting it in
a recent dictum which specifically contrasted
DeShaney: "[W]e do not, of course, suggest
that public schools as a general matter have
such a degree of control over children as to
give rise to a constitutional 'duty to
protect.'"

175 F.3d at 71–72 (alteration in original) (quoting Vernonia Sch.

Dist. v. Acton, 515 U.S. 646, 655 (1995)).

Importantly, we explained "we are loath to conclude now

and forever that inaction by a school toward a pupil could never

give rise to a due process violation [, as] [f]rom a commonsense

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vantage, [the student] is not just like . . . the young child in

DeShaney who was at home in his father's custody and merely subject

to visits by busy social workers who neglected to intervene." Id.

at 72. So, too, here. In any event, however, Morgan has not

alleged the "pungent facts" that would be required to show that

any behavior by school officials was "so extreme as to 'shock the

conscience.'" Id. (quoting Cty. of Sacramento v. Lewis, 523 U.S.

833, 846 (1952)).

Morgan also asserts that her claim falls within the state

created danger theory, which may be implicated "[w]here a state

official acts so as to create or even markedly increase a risk" to

an individual, id. at 73; see also Coyne v. Cronin, 386 F.3d 280,

287 (1st Cir. 2004) ("[T]he Due Process Clause may be implicated

where the government affirmatively acts to increase the threat to

an individual of third-party private harm or prevents that

individual from receiving assistance." (citations omitted)).

Morgan argues that the defendants and other school

employees allegedly "turned a blind eye" to the bullying of R.M.

"and took affirmative steps to disregard Plaintiff's complaints

and permit the ongoing sexual harassment and bullying," which

"materially contributed to creating the specific condition or

situation that caused R.M.'s injuries." The "affirmative steps"

Morgan points to include Principal Flynn's "punishment" of not

letting R.M. run in the track meet because he delayed the

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investigation after the October 5, 2011, Kool-Aid Club incident;

sending officers to R.M.'s house; and a school official telling

Morgan and R.M. at a meeting that there was not time to discuss

specific incidents.5 These acts certainly did not create a new

danger. See Morrow v. Balaski, 719 F.3d 160, 178 (3d Cir. 2013)

(en banc). And Morgan offers no explanation for how the acts

caused R.M. to be bullied or increased the risk to him. See Stiles

ex rel. D.S. v. Grainger Cty., Tenn., No. 15-5438, 2016 WL 1169099,

at *15 (6th Cir. Mar. 25, 2016). An alleged failure of the school

to be effective in stopping bullying by other students is not

action by the state to create or increase the danger. These

routine acts of school discipline, truancy enforcement, and

administrator-parent conferences are not the vehicle for a

substantive due process constitutional claim. Cf. Rivera, 402

F.3d at 37 (noting that "[w]hile requiring [the girl]'s testimony

may in fact have increased her risk, issuance of a subpoena did

not do so in the sense of the state created danger doctrine," as

"[e]very witness involved in a criminal investigation and issued

a subpoena to testify . . . faces some risk, and the issuance of

a subpoena cannot become the vehicle for a constitutional claim

5 Morgan also asserts that a school behavioral specialist
was instructed to "illegally alter[] the diagnosis of [R.M.] in an
attempt to avoid any potential liability," but she fails to develop
any argument connecting that act to bullying toward R.M., and as
such, we deem the issue waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

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against a state"). Moreover, viewing these acts as inaction does

not help Morgan's argument. See Hasenfus, 175 F.3d at 72. The

alleged acts in Morgan's complaints here simply do not approach

the threshold of a state-created danger.6 See Rivera, 402 F.3d at

35 (collecting this circuit's cases finding no actionable set of

facts). As such, Morgan's claim fails.

B. Title IX Claim

Title IX of the Education Amendments of 1972 provides

that "[n]o person in the United States shall, on the basis of sex,

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

be subjected to discrimination under any education program or

activity receiving Federal financial assistance." See 20 U.S.C.

§ 1681(a). An implied right of action for such claims lies only

"against the educational institution itself." Frazier v.

Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002).

6 At oral argument, Morgan's counsel heavily relied on the
truancy officers' visit to R.M.'s house. Counsel asserted that
"when the school takes under the color of law to send police
officers to [R.M.'s home], it then is doing something that . . .
is a compulsory control." To the extent counsel was arguing that
an affirmative duty to protect arises because the school was
telling R.M. that he was obliged to return to school, we reject
the contention. Compulsory attendance laws "are necessary . . .
enforcement tools," and by themselves "cannot be the basis to
impose constitutional liability on the state." Rivera, 402 F.3d
at 37. A rule otherwise would enervate the truancy enforcement
capacities of an education system. See Mass. Gen. Laws ch. 76,
§ 1 ("The school committee of each town shall provide for and
enforce the school attendance of all children actually residing
therein in accordance herewith.").

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 Sexual harassment in schools can constitute prohibited

sex-based discrimination actionable under Title IX where there is

a "hostile environment," such that "acts of sexual harassment [are]

sufficiently severe and pervasive to compromise or interfere with

educational opportunities normally available to students," and

relevant school officials with actual knowledge of the harassment

"exhibit[] deliberate indifference to [the harassment]." Id. at

65, 66. Student on student harassment can be actionable. Davis

ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 643

(1999). The purportedly illegal acts must be taken "on the basis

of sex." See Frazier, 276 F.3d at 66 ("Discrimination on the basis

of sex is the sine qua non of a Title IX sexual harassment case,

and a failure to plead that element is fatal."). However,

"harassing conduct need not be motivated by sexual desire to

support an inference of discrimination on the basis of sex."

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).

Morgan points to the allegation that R.M.'s pants were

pulled down on one occasion in front of a girl, and on some

unspecified number of other occasions not described as being in

front of any girls.7 One might perhaps view such conduct as

7 Morgan's amended complaint includes one reference to
R.M. being "sexually assaulted while at school" and one reference
to R.M. receiving "death threats." Neither allegation includes
any "factual content that allows the court to draw the reasonable
inference that the defendant[s] [are] liable for the misconduct
alleged," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and where

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harassment "on the basis of sex" depending on the context. Here,

however, no such inference is plausible. Morgan's complaint does

not allege any sex- or gender-based animus by any of the students,

and none can be inferred from the circumstances outlined in the

complaint.

Moreover, the pulling down of the pants by and large

seems clearly to be an adjunct to the bullying on the basis of

other considerations, and by itself is not portrayed in the

complaint as sufficiently "severe" and/or "pervasive" to supply a

sexual harassment claim under Title IX. See Davis, 526 U.S. at

643 (finding that liability arises only when the school is

deliberately indifferent to sexual harassment that is "severe,

pervasive, and objectively offensive"). Even if in some cases one

could "use a substantial amount of arguably gender-neutral

harassment to bolster a smaller amount of gender-based conduct,"

as Morgan suggests, such an inference is not reasonable here, where

there is only one incident that can even arguably be deemed sex-

based. Morgan's citation to Chavez v. New Mexico, 397 F.3d 826

(10th Cir. 2005), a workplace sex harassment suit in which the

factual allegations "are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture," we
cannot credit them, SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.
2010) (en banc).

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"[p]laintiffs allege[d] a number of gender-based incidents," id.

at 833, is therefore inapposite.

Morgan also attempts to rely on an unpublished per curiam

Fifth Circuit opinion, Carmichael v. Galbraith, 574 F. App'x 286

(5th Cir. 2014) (per curiam), which found that "[t]he removal of

a person's underwear without their consent on numerous occasions

plausibly constitutes pervasive harassment of a sexual character,"

id. at 29. But the case is readily distinguishable because the

instant case lacks the "constellation of surrounding

circumstances," id. at 290 (quoting Davis, 526 U.S. at 651), that

the Carmichael court underscored in finding actionable sex-based

conduct, including that the boy was "accosted by a group of boys

in the locker room -- oftentimes having his underwear removed --

while [one of the defendants] observed"; and "members of the

football team 'stripped [the boy] nude and tied him up' and 'placed

[him] into a trash can' while calling him 'fag,' 'queer,' and

'homo,'" id. at 288.

As such, it was not an abuse of discretion for the

district court to determine that amendment of the complaint would

be futile.

III.

We affirm the district court's dismissal of Morgan's

complaint and the denial of her motion to amend. No costs are

awarded.

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