Doe v. Pawtucket School Department

United States Court of Appeals
For the First Circuit
No. 19-1458

JANE DOE, a minor in and for her own behalf and in her own
right; MARY DOE, parent and next friend of Jane Doe, a minor and
in her own right,

Plaintiffs, Appellants,

v.

PAWTUCKET SCHOOL DEPARTMENT; CITY OF PAWTUCKET, RHODE ISLAND;
PATTI DECENSO, individually and in her official capacity as
Superintendent of Pawtucket School Department; PAWTUCKET SCHOOL
COMMITTEE; GERARD CHARBONNEAU, in his capacity as Chairman of
Pawtucket School Committee; MICHAEL ARAUJO, in his capacity as
Pawtucket School Committee Member; JOANNE M. BONOLLO, in her
capacity as Pawtucket School Committee Member; ERIN M. DUBE, in
her capacity as Pawtucket School Committee Member; JOHN J.
CROWLEY, in his capacity as Pawtucket School Committee Member;
JOSEPH KNIGHT, in his capacity as Pawtucket School Committee
Member; ELENA VASQUEZ, in her capacity as Pawtucket School
Committee Member; LINDA GIFFORD, individually and in her
official capacity as school principal of Pawtucket Learning
Academy; SHAUN W. STROBEL, in his capacity as Pawtucket City
Treasurer; DAVID MORTON, in his individual and official capacity
as a teacher and member of the Pawtucket Learning Academy; KAREN
DUBE, in her individual and official capacity as a teacher and
member of the Pawtucket Learning Academy; ELIZABETH VELIS, in
her individual and official capacity as a teacher and member of
the Pawtucket Learning Academy; LEE RABBIT, in her individual
and official capacity as a teacher and member of the Pawtucket
Learning Academy; KERRI DAY, in her individual and official
capacity as a teacher and member of the Pawtucket Learning
Academy; SUSAN HALL, in her individual and official capacity as
a teacher and member of the Pawtucket Learning Academy; MICHAELA
FRATTARELLI, in her individual and official capacity as a
teacher and member of the Pawtucket Learning Academy;
CHRISTOPHER SWICZEWICZ, in his individual and official capacity
as a teacher and member of the Pawtucket Learning Academy;
THOMAS J. ANDERSON, in his individual and official capacity as a
teacher and member of the Pawtucket Learning Academy,

Defendants, Appellees.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., Chief U.S. District Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

George Patrick Hovarth, Law Offices of Hovarth & Hovarth, and
Edward John Mulligan on brief for appellants.
Jon Mason Anderson, Brennan, Recupero, Cascione, Scungio, &
McAllister, LLP, Patrick Kelly Cunningham, Marc DeSisto, DeSisto
Law LLP, Sara Rapport, Whelan, Corrente, Flanders, Kinder & Siket
LLP, Patrick J. McBurney, Matthew Christopher Reeber, Pannone
Lopes Devereaux & O'Gara LLC, Mark P. Dolan, and Rice Dolan &
Kershaw on brief for appellees.

August 6, 2020
 KAYATTA, Circuit Judge. Plaintiff Jane Doe has alleged

that she was the victim of several incidents of sexual assault and

harassment while she was a student at the Pawtucket Learning

Academy ("PLA") in Pawtucket, Rhode Island. The district court

granted the defendants' motion to dismiss all of Doe's claims, and

Doe appealed. Because Doe's allegations, if true, tell a plausible

story of deliberate indifference by school officials to repeated

and severe sexual harassment, we vacate the dismissal of her claim

for a violation of Title IX, 20 U.S.C. § 1681 et seq., and allow

a somewhat narrowed version of it to proceed on remand. We affirm

the district court's dismissal of the other claims, as well as the

dismissal of all claims against the individual defendants.

I.

On this review of a dismissal under Rule 12(b)(6), "we

take the nonconclusory, nonspeculative facts contained in the

complaint as true and draw all reasonable inferences from those

facts in [Doe's] favor." Hamann v. Carpenter, 937 F.3d 86, 88

(1st Cir. 2019).

During 2016 and 2017, Doe attended the Pawtucket

Learning Academy, a public school operated by the Pawtucket School

Department. PLA had only approximately seventy students when Doe

attended. The school's six classrooms for grades 6 through 12,

the teachers, and a few staff members were all on one floor.

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 For the most part, Doe's complaint contains many general

allegations that are too conclusory and/or contingent to make out

a viable claim. She repeatedly employs broad general terms such

as "sexual assault[]" and "molestation[]" without specifics. And

she speculates that school officials had "knowledge or ought to

have had knowledge" (emphasis added) of various occurrences.

Regarding several serious events, though, she does allege actual

facts.

First, in April 2016, in her physical education class "a

male gym student . . . got behind Minor Plaintiff, and simulated

sexual fornication by rubbing his genitalia area against the Minor

Plaintiff's clothed anal area, in front of the gym teacher and

class. At that time, she and/or the school contacted the police."

Second, Doe alleges that she was raped by a seventeen-

year-old PLA student named Adriel in May 2016. Adriel entered

Doe's classroom, started talking to another older student and to

Doe, and the three left the room, apparently without any response

or interference from the instructor. Adriel "pushed, guided and/or

forced" Doe into a bathroom and raped her. Doe alleges that rumors

about the incident spread throughout the school, and the day

afterward, school principal Linda Gifford said to her, "I heard

you had sex with Adriel?" The thirteen-year-old Doe responded,

"yes." The school took no measures in response.

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 In June 2017, Doe was raped by an adult PLA student,

Ivander DeBurgo, whom Doe says had raped another female student

previously. Doe alleges that while she and two other students

were in a math class with a teacher after normal school hours,

DeBurgo repeatedly entered the classroom and tried to entice her

to leave with him. When the teacher told DeBurgo to leave, DeBurgo

ignored the instruction, and no steps were taken to ensure his

departure from the building or limit his access to Doe within the

building. Roughly an hour later, Doe left the classroom to use

the restroom. Shortly thereafter, the school secretary found her

huddled under the bathroom sink, having just been raped by DeBurgo.

The principal, the assistant principal, the assistant

superintendent, and the school superintendent learned of the rape

that afternoon. Their immediate reaction was to escort both

DeBurgo and Doe out of the building. They took no statements, nor

did they contact the police. Doe was left to fend for herself

with DeBurgo, who had already threatened her with further harm.

The next morning, the school resource officer learned of the rape

from students and contacted the police. At that point, Doe was

placed "under escort" and spoke to the school social worker, Karen

Dube, who told her she could "put her concerns in writing." Doe

told Dube that she was worried about retaliation, and Doe alleges

that Dube was aware of threats against her by DeBurgo and his

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friends. DeBurgo was ultimately convicted of rape and sexual

molestation against Doe in Rhode Island state court.

Finally, Doe alleges that in April 2017 a member of the

PLA faculty, David Morton, approached Doe in the school hallway

while she was riding "piggy back" with another student, and

"smacked and grabbed her butt." In the months before his assault

on Doe, Morton had touched the inner thighs of other students and

made sexual remarks to them. Doe alleges that the superintendent,

assistant superintendent, principal, and assistant principal had

known about these previous events "for some time," and even that

other teachers were sometimes present in the room when they took

place. Doe filed a criminal complaint against Morton, who was

eventually charged with misdemeanor assault.

As a result of all this, Doe alleges that she "suffered

emotional distress, post-rape traumatic syndrome, post traumatic

syndrome, [and] has needed medical care and attention." She has

also "needed to be transferred to a school system outside of the

Pawtucket School System."

II.

After three amendments, Doe's complaint marshaled five

sets of allegations collectively said to establish actionable

claims against twenty-one defendants under sixteen different

counts. The district court duly undertook the task of looking for

some wheat hidden in this basket of chaff, eventually finding none

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and dismissing the entire action. On appeal, plaintiffs have

discovered the virtue of focus, but see infra subsection II.B.,

and trained our attention on Count One of their Third Amended

Complaint, Title IX of the Education Amendments of 1972, 20 U.S.C.

§§ 1681-1688.

A.

Title IX creates an implied private right of action

against federal funding recipients for money damages caused by a

recipient's violation of its obligations under the Title. Franklin

v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992); see also

Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979). Such a violation

can occur when a Title IX funding recipient is deliberately

indifferent to known acts of sexual harassment of a student by a

teacher. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 287–88, 290 (1998). Such a violation can also occur when a

Title IX funding recipient is deliberately indifferent to known

acts of harassment in its programs or activities, including severe

and pervasive acts of harassment perpetrated by fellow students in

circumstances under the recipient's substantial control. Davis ex

rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 644–

46, 650 (1999) (finding liability "where [the district is]

deliberately indifferent to sexual harassment, of which [it has]

actual knowledge, that is so severe, pervasive, and objectively

offensive that it can be said to deprive the victims of access to

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the educational opportunities or benefits provided by the

school").

In reviewing the sufficiency of a complaint under

Rule 12(b)(6), our analysis turns on whether the complaint

plausibly alleges that the plaintiff suffered harassment or

assault that met the standards set out above. In other words, we

simply assume that well-pleaded facts are true and ask whether

such facts and inferences reasonably drawn from those facts

plausibly state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (requiring "sufficient factual matter, accepted as true, to

'state a claim to relief that is plausible on its face'" (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). We review

the district court's analysis of the defendants' motion de novo.

Penate v. Hanchett, 944 F.3d 358, 365 (1st Cir. 2019).

We agree with the defendants and the district court that

Doe's complaint does not allege facts that make plausible any claim

that school district officials were deliberately indifferent to

her harassment up to the date of her encounter with Adriel. We

can fairly infer from the fact that the police were called to the

school after the incident in gym class that the school officials

had actual knowledge of that incident after the fact. But the

immediately ensuing police presence at the school suggests that

school officials did take responsive action, and Doe develops no

argument for why their response was so unreasonable as to

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demonstrate deliberate indifference to her harassment. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."). And as for Doe's

more general allegations of assault leading up to that point, she

has failed to allege that any school official had actual knowledge

of them: The complaint avers only that the "superintendent and

principal and other teachers" "ha[d] knowledge or ought to have

had knowledge" of the events. Such constructive knowledge is

plainly insufficient. See Gebser, 524 U.S. at 290 (requiring

actual notice to an "appropriate person," 20 U.S.C. § 1682, who is

"an official of the recipient entity with authority to take

corrective action to end the discrimination").

That brings us to the alleged rape by Adriel in the

school bathroom. The complaint specifically alleges that when

asked by the principal whether she had sex with Adriel, Doe told

her that she did. And the complaint alleges that the principal

did nothing in response to learning that information. The

defendants do not dispute that a failure to take some action to

reduce the likelihood of further harassment would serve as evidence

of deliberate indifference. They instead argue that the school

had no notice of the rape. In particular, they maintain that Doe

denied having sex with Adriel when the principal asked her about

it and that her allegation to the contrary is implausible because,

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had the principal known of such sexual contact with a thirteen-

year-old, she would have jumped into action to deal with it.

We agree with defendants that a school principal not

indifferent to the situation would have certainly responded in

some way to reduce the likelihood of any repetition. So if we

were to assume that the principal was not indifferent to Doe's

plight, the fact that the principal did nothing would suggest that

she was unaware of any sexual contact, as she claims. But in

reviewing the adequacy of a complaint, we cannot assume that the

principal was not indifferent. That is a matter of proof, not

assumption. See Hamann, 937 F.3d at 88 (explaining that on a

motion to dismiss, we take all reasonable inferences from the

factual allegations in the plaintiff's favor). To proceed,

instead, as defendants urge would be to assume away the case --

and other such cases -- by deeming the inactions of an allegedly

indifferent person to be proof that the person was not indifferent.

The defendants also point to medical and police reports

supposedly showing that Doe denied having had sex with Adriel. In

ruling against Doe, the district court also relied on those two

reports, describing them as showing Doe's "denying [to the

principal and others] that anything sexual had taken place."

The district court's reliance on those reports was

twice-flawed. First, a motion to dismiss under Rule 12(b)(6)

generally provides no occasion upon which to consider documents

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other than the complaint. There are exceptions, to be sure. See

Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013)

(allowing the court to review "any documents attached to the

complaint or incorporated by reference therein"); Clorox Co. P.R.

v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000)

(holding that the court may consider a document "integral to or

explicitly relied upon in the complaint, even though not attached

to the complaint" (quoting Shaw v. Digit. Equip. Corp., 82 F.3d

1194, 1220 (1st Cir. 1996))); Beddall v. State St. Bank & Tr. Co.,

137 F.3d 12, 17 (1st Cir. 1998) (explaining that when "a

complaint's factual allegations are expressly linked to -- and

admittedly dependent upon -- a document (the authenticity of which

is not challenged), that document effectively merges into the

pleadings and the trial court can review it in deciding a motion

to dismiss under Rule 12(b)(6)"); see also Flores v. OneWest Bank,

F.S.B., 886 F.3d 160, 167 (1st Cir. 2018) (explaining the extent

of the possible exceptions). But none of those exceptions applied

here: The medical and police reports are not expressly referenced

in the complaint, the complaint does not rely upon them or

incorporate them, and the allegations in the complaint are not

"dependent" upon their contents. Second, even were it proper to

consider the reports, nothing in them makes it implausible that

Doe told the principal what she alleges. Nor do they directly

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contradict the allegations in the complaint in any other way.1

Even if they did purport to include a direct denial from Doe, we

would have a battle of proof and credibility, not a failure to

allege a claim.

Doe does not allege that the principal knew the sex

between Doe and Adriel was forced; however, at the time of the

rape Doe was thirteen and Adriel was seventeen. Given the age

difference, and the fact that the principal likely knew that Doe

had been previously subjected to an assault in gym class serious

enough to warrant a visit by the police to the school, Doe may be

able to make the case that once they learned of the sexual

encounter with Adriel, school officials not indifferent to the

abuse would have investigated or recognized Doe's apparent

vulnerability to sexual assault and made at least some attempt to

protect her going forward. This is an allegation of a failure "to

take corrective action." Gebser, 524 U.S. at 290.

1
The police report states that Gifford told police that Doe
had "denied anything sexual happening." There is no indication of
Doe admitting that she had denied it, however, and the complaint
clearly alleges the opposite. The district court may not take
Gifford's word above Doe's at the pleading stage.
As for the medical report, we are unable to locate any
admission by Doe that she denied anything sexual had taken place
with Adriel. The report does reflect Doe saying that Adriel had
"touched her over and under her clothes with his hand." That is
hardly a statement that she was not raped, or an admission that
she failed to tell PLA staff about it.

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 The deliberate indifference standard of course requires

that the funding recipient's actions -- or failure to act -- caused

the student's subsequent harassment in some way or made the student

"liable or vulnerable" to harassment. Davis, 526 U.S. at 645; see

also Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172–73

(1st Cir. 2007) (noting that the standard in Davis "sweeps more

situations" than simple but-for causation and reasoning that a

complaint "theoretically could form a basis for Title IX

liability" where "post-notice interactions between the victim and

the harasser have been alleged"), rev'd on other grounds, 555 U.S.

246 (2009). So there could be no causal connection between Doe's

rape by Adriel and the school officials' subsequent alleged

indifference to it. The school therefore bears no liability for

directly causing that abuse, at least under Title IX.2 On the

other hand, Doe may be able to make out a claim under Title IX

based on the school's indifference from that point forward to her

demonstrated vulnerability to abuse by older male students. For

instance, she may be able to show that, had the school behaved as

Title IX demands, DeBurgo's subsequent repeated improper entries

into her classroom in the presence of a teacher would have been

2
However, even if the events of April and May 2016 do not
themselves provide a basis for a cause of action, they may still
be considered as evidence with respect to the Title IX claims that
do survive.

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dealt with very differently, frustrating DeBurgo's attempt to rape

her in the school.

It is true that funding recipients are not required to

have perfect foresight or manage all student interactions

expertly. See Davis, 526 U.S. at 648 (permitting liability only

where a funding recipient's "response to the harassment or lack

thereof is clearly unreasonable in light of the known

circumstances"); see also id. at 649 ("This is not a mere

'reasonableness' standard . . . ."); Porto v. Town of Tewksbury,

488 F.3d 67, 74 (1st Cir. 2007) (requiring that deliberate

indifference not be evaluated by hindsight). But here, by failing

to take any action to stem the tide of assaults against Doe, it is

plausible that PLA officials "'disregarded a known or obvious

consequence of [their] action' or inaction" and thus contributed

to her likelihood of sexual assault and rape. Porto, 488 F.3d at

73 (emphasis omitted) (quoting Bd. of the Cnty. Comm'rs v. Brown,

520 U.S. 397, 410 (1997)). How this fleshes out in discovery

remains to be seen.

The defendants additionally argue that the student-on-

student harassment Doe faced was not sufficiently severe and

pervasive to create Title IX liability. See Davis, 526 U.S. at

651. But Doe has alleged that she was assaulted in physical

education class and then raped two times in the subsequent months

-- hardly a case of a one-off interaction with a rogue student, or

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mere childish teasing. See Morgan v. Town of Lexington, 823 F.3d

737, 745 (1st Cir. 2016) (finding "pulling down of [the

plaintiff's] pants" to be mere "bullying" and not sufficiently

"severe"); see also Davis, 526 U.S. at 652 (explaining that teasing

and bullying are not sufficient to create a Title IX claim).

Harassment need only be severe enough to "undermine[] and detract[]

from the victim's educational experience" such that the victim is

"effectively denied equal access to an institution's resources and

opportunities." Davis, 526 U.S. at 651. There is no requirement

that the victim entirely leave the recipient's programs

immediately in order to have a viable Title IX claim, nor is there

anything in Doe's complaint that requires us to infer that her

educational experience was not undermined. To the contrary, Doe

alleges that she "suffered emotional distress, post-rape traumatic

syndrome, post traumatic syndrome, [and] has needed medical care

and attention."

Beyond the student-on-student assaults that Doe has

alleged, she also tries to plead that an assault by PLA teacher

David Morton violated her Title IX rights. Doe has alleged that

Morton repeatedly harassed or assaulted other students; that four

different identified school officials knew of the incidents (the

superintendent, assistant superintendent, principal, and assistant

principal) "for some time"; and that the school did nothing to

prevent Morton from sexually assaulting Doe as well. Put simply:

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If the allegations are true, PLA had ample notice of Morton's

behavior, and it failed to do anything about it.

The defendants argue that Morton's assault on Doe was

nevertheless not sufficiently severe or pervasive to form the basis

of Title IX liability, citing a handful of roughly similar

district-court cases. See Francoeur v. D.L., No. 3:15cv953, 2017

WL 4247385, at *6 (D. Conn. Sept. 25, 2017) (addressing student-

on-student harassment); DeCecco v. Univ. of S.C., 918 F. Supp. 2d

471, 511–12 (D.S.C. 2013) (finding that one instance of sexual

touching by a college athletic coach was not severe or pervasive);

Gregg v. N.Y. State Dep't of Tax'n & Fin., No. 97 CIV. 1408, 1999

WL 225534, at *12 (S.D.N.Y. Apr. 19, 1999) (addressing severity

and pervasiveness in the workplace under Title VII).

Our controlling precedent primarily discusses the

severity and pervasiveness requirement in the context of student-

on-student harassment. See, e.g., Davis, 526 U.S. at 651–53;

Morgan, 823 F.3d at 745. While Gebser does not expressly address

severity and pervasiveness in the context of teacher-on-student

harassment, see 524 U.S. at 290–92, some degree of severity or

pervasiveness must be present in order for harassment to result in

"exclu[sion]" or "discrimination" under Title IX, 20 U.S.C.

§ 1681(a) ("No person . . . shall, on the basis of sex, be excluded

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

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to discrimination under any education program or activity

receiving Federal financial assistance . . . .").

Conduct that might not be actionable under Title IX if

perpetrated by a student might be deemed more likely to exclude,

or discriminate against, the potential targets of the conduct if

perpetrated by a person in authority. Here, we have an allegation

that the school allowed a male teacher to touch numerous female

students on the thighs and buttocks with impunity. If that is the

case, then it is plausible that, depending on how the details

develop in discovery, a factfinder could find the conduct severe

and pervasive enough to result in excluding, or discriminating

against, a victim of that behavior.

Additionally, Doe's complaint challenges the cumulative

impact of the various assaults upon her during her tenure at PLA,

with the assault by the teacher coming after the DeBurgo rape,

finally leading to her removal from the school. Intentionally (it

is alleged) leaving a student-groping teacher in a small six-room

school in which a young female student had already been subjected

to three sexual assaults might be viewed by a factfinder --

depending on the other evidence that develops -- as further

evidence of the school's deliberate indifference to the nature of

the student's plight and the resulting severity and pervasiveness

of the abuse.

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 B.

There are two other loose ends to tie up -- Doe's claims

under state law and 42 U.S.C. § 1983, and the applicability of

Doe's claims to the individual defendants. As to the latter, Doe

has conceded she is not pursuing any Title IX claims against any

individuals, nor could she. See Davis, 526 U.S. at 641 ("The

government's enforcement power may only be exercised against the

funding recipient, and we have not extended damages liability under

Title IX to parties outside the scope of this power." (internal

citation omitted)). As to the former, Doe's opening brief on

appeal presented no argument at all for challenging the dismissal

of her state law and § 1983 claims. She therefore has waived any

such challenge. See United States v. Tosi, 897 F.3d 12, 15 (1st

Cir. 2018) ("[A]rguments available at the outset but raised for

the first time in a reply brief need not be considered."); United

States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998); see also Walsh

v. TelTech Sys., Inc., 821 F.3d 155, 162 n.4 (1st Cir. 2016)

(holding that an argument for emotional-distress damages raised

for the first time in a reply brief is waived).3 What remains are

only Doe's Title IX claims against the City of Pawtucket and the

Pawtucket School Department for damages resulting from the

3 We therefore also deny as moot Defendants' motion seeking
to strike from Doe's reply brief a belated attempt to revive her
state law and § 1983 claims.

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school's alleged deliberate indifference commencing with its

reaction to the first alleged rape.

III.

For the reasons explained above, we vacate in part the

entry of judgment against Doe on her Title IX claim against the

City and its school department, and we otherwise affirm the

dismissal of Doe's claims. Each party shall bear their own costs.

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