Smith v. Maine School Administrative District No. 6, Docket No. 00-284-P-C (D. Me. 1/29/2001)

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LACEY SMITH, et al., Plaintiffs v. MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 6, et al., Defendants.

Docket No. 00-284-P-C.

United States District Court, D. Maine.

January 29, 2001.

RECOMMENDED DECISION ON MOTIONS TO DISMISS

DAVID M. COHEN, Magistrate Judge.

The individual defendants, Martha Corkery, Ansel Stevens and Linda Linnell, move pursuant to Fed.R.Civ.P. 12(b)(6) for dismissal of all claims asserted against them in their individual capacities in this action arising out of a school dance and school chorus concert. The other defendant, Maine School Administrative District No. 6 ("MSAD 6"), the employer of the individual defendants, moves for dismissal of Count III of the complaint. I recommend that the motions be granted in part and denied in part.

I. Applicable Legal Standard

"When evaluating a motion to dismiss under Rule 12(b)(6), [the court takes] the well-pleaded facts as they appear in the complaint, extending plaintiff[s] every reasonable inference in [their] favor." Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir. 1993). The defendants are entitled to dismissal for failure to state a claim upon which relief can be granted only if "it appears to a certainty that the plaintiff[s] would be unable to recover under any set of facts." Roma Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir. 1996); see also Tobin v. University of Maine Sys., 59 F. Supp.2d 87, 89 (D.Me. 1999).

II. Factual Background

The following allegations in the complaint are relevant to the disposition of the defendants' motions. Plaintiff Lacey Smith ("Lacey"), the daughter of plaintiffs David and Martha Smith, was at all relevant times a seventh grade student at Bonny Eagle Middle School, which is part of MSAD 6. Complaint (Docket No. 1) ¶¶ 2-4. Defendant Ansel Stevens was at all relevant times the principal of Bonny Eagle Middle School. Id. ¶ 5. Defendant Martha Corkery was at all relevant times the assistant principal of Bonny Eagle Middle School. Id. ¶ 6. Defendant Linda Linnell was at all relevant times the director of the Bonny Eagle Middle School seventh grade chorus. Id. ¶ 7. The individual defendants are sued in both their individual and their official capacities. Id. at 1 (caption).

In September 1998 Lacey entered the seventh grade at Bonny Eagle Middle School. Id. ¶ 13. She received a school identification card identifying her as a seventh grader, was assigned to a seventh-grade homeroom and received a set of materials welcoming her to the seventh grade. Id. Lacey is a multi-handicapped individual with mental retardation, attention deficit hyperactivity disorder and Cohen Syndrome. Id. ¶ 14. A Pupil Evaluation Team developed an Individualized Education Program ("IEP") for Lacey that provided for full inclusion in the education program and placement in the seventh grade "clan." Id. ¶ 15.

On or about October 9, 1998 the school scheduled a dance for all seventh graders. Id. ¶ 16. Lacey received written permission from an aide to her teacher to attend the dance. Id. ¶ 17. Her mother spoke to another aide to Lacey's teacher on the day of the dance and received assurance that Lacey would be well taken care of at the dance. Id. Not long into the dance, defendant Corkery told Lacey and three other special education students that they did not belong at the dance and would have to accompany her to her office so that she could call their parents to come and pick them up. Id. ¶ 19. Corkery had been told by defendant Stevens that the students were sixth graders and had to leave. Id. Lacey and the other students told Corkery that they were seventh graders and had permission to be at the dance. Id. ¶ 20. Stevens and Corkery understood that the students were in a seventh grade "clan" or homeroom. Id. ¶ 21.

After some time, Corkery reached Martha Smith by telephone and told her that Lacey did not belong at the dance because she was a sixth grader. Id. ¶ 23. Mrs. Smith told Corkery that Lacey was a seventh grader and had permission to be at the dance. Id. ¶ 24. Corkery reiterated that Lacey could not stay at the dance. Id. When Mr. and Mrs. Smith arrived at the dance in response to Corkery's call, they again advised Corkery that Lacey was a seventh grader and showed her the permission slip from the aide. Id. ¶ 25. They asked Corkery and Stevens to allow Lacey to stay at the dance, her first. Id. ¶ 26. Stevens refused to allow the students to stay at the dance. Id. ¶ 27. As a result, Lacey was "made to feel that she was different," id. ¶ 29, and subjected to ridicule and severe emotional distress, id. ¶¶ 48, 56, 64, 67, 73, 80.

During the 1998-99 school year Lacey was a member of the seventh grade chorus at the school. Id. ¶ 32. On or about April 15, 1999 the chorus held a concert. Id. Lacey and one other special education student were unable to find places to sit in the section of the bleachers in which the chorus was instructed to sit because other students would not make room for them. Id. ¶ 33. Lacey and the other students were directed by a Ms. Jack to sit in the next set of bleachers away from the main chorus. Id. ¶ 34. After David Smith pointed out to Stevens that the special education students had been excluded from sitting with the rest of the chorus, Stevens directed the chorus students to make room for Lacey and the other student. Id. ¶ 35.

During the concert, while the chorus was singing, a student tapped Lacey on the shoulder and said something to her. Id. ¶ 36. Several students behind Lacey moved away from her during the song. Id. The student who tapped Lacey on the shoulder had been directed to do so by defendant Linnell when the student believed that Lacey was singing too loudly. Id. ¶ 37. As a result, Lacey was ridiculed by other students and "held out as different, inappropriate and unacceptable." Id.

III. Discussion

The complaint includes six counts. The individual defendants seek dismissal of the claims asserted against them in their individual capacities in Counts I, II and IV, dismissal of the claims asserted against them in Count III, and dismissal of the state-law claims asserted against them in Counts V and VI pursuant to 28 U.S.C. § 1367(c)(3). Motion of Defendants Martha Corkery, Ansel Stevens and Linda Linnell to Dismiss the Complaint, etc. ("Individual Defendants' Motion") (Docket No. 3) at 1, 14. Defendant MSAD 6 seeks dismissal of Count III. Motion of Defendant Maine School Administrative District No. 6 to Dismiss Count III of the Complaint, etc. ("MSAD 6 Motion") (Docket No. 4). The individual defendants do not address the assertion of claims against them in their official capacities.

A. Counts I, II and IV

Count I alleges violation of the Rehabilitation Act, 29 U.S.C. § 794. Complaint ¶¶ 10, 42-48. Count II alleges violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Complaint ¶¶ 10, 49-56. Count IV alleges violation of the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. § 4551 et seq. Complaint ¶ 10, 65-67. The individual defendants contend that these statutes do not allow actions against them in their individual capacities. Individual Defendants' Motion at 4-5.

The language of the Rehabilitation Act relevant to the plaintiffs' claims in this action provides:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or 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). The section of the ADA invoked by the plaintiffs, Complaint ¶ 54, provides:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.

The majority of courts that have addressed the issue have held that neither the Rehabilitation Act nor the ADA permits claims against persons in their individual capacities. E.g., Silk v. City of Chicago, 194 F.3d 788, 797 n. 5 (7th Cir. 1999) (both); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999) (ADA); Hiler v. Brown, 177 F.3d 542, 546-47 (6th Cir. 1999) (Rehabilitation Act); Hallett v. New York State Dep't of Correctional Servs., 109 F. Supp.2d 190, 199 (S.D.N.Y. 2000) (both); Montez v. Romer, 32 F. Supp.2d 1235, 1240-41 (D.Colo. 1999) (both); Randolph v. Rodgers, 980 F. Supp. 1051, 1060-61 (E.D.Mo. 1997) (both), rev'd in part on other grounds 170 F.3d 850, 854 n. 4 (8th Cir. 1999). The plaintiffs cite two district court opinions that provide authority to the contrary, Plaintiffs' Opposition to Motion of Defendants Martha Corkery, Ansel Stevens, Jr., and Linda Linnell to Dismiss the Complaint, etc. ("Plaintiffs' Opposition") (Docket No. 10) at 7, but I find the brief, conclusory discussions in Niece v. Fitzner, 922 F. Supp. 1208, 1218-19 (E.D.Mich. 1996) (ADA), and Chaplin v. Consolidated Edison Co. of New York, 587 F. Supp. 519, 520-21 (S.D.N.Y. 1984) (Rehabilitation Act),¹ to be unpersuasive. The individual defendants are entitled to dismissal of the claims against them in their individual capacities that are set forth in Counts I and II.

The claim asserted in Count IV under the state statute requires closer consideration. The Law Court has not yet ruled on the question whether an individual may be held liable under 5 M.R.S.A. § 4602(2)(A), the section of the Maine Human Rights Act on which the plaintiffs rely. See generally Gordan v. Cummings, 756 A.2d 942, 945 (Me. 2000) (declining to rule on issue in employment context). That portion of the MHRA provides:

It is unlawful educational discrimination in violation of this Act solely on the basis of physical or mental disability to:

A. Exclude from participation in, deny the benefits of or subject to...