ORDER REGARDING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant's Motion to Dismiss pursuant toFed.R.Civ.P. 12(b)(6) (Docket #8). Alleging that Defendant sexuallymolested her while she was a child, Plaintiff asserts claims againstDefendant under 42 U.S.C. § 1983, as well as Maine state law claimsfor assault, intentional infliction of emotional distress, negligentinfliction of emotional distress and punitive damages. In his Motion toDismiss, Defendant specifically challenges Counts I, II and IV. For thereasons discussed herein, Defendant's Motion is GRANTED with regard toCount II, and DENIED for all other Counts.
I. STANDARD OF REVIEW
Generally, a court may dismiss a claim under Fed.R.Civ.P. 12(b)(6) onlyif it clearly appears that, on the facts alleged, the plaintiff cannotrecover on any viable theory. See Gonzalez-Morales v.Hernandez-Arencibia, 221 F.3d 45, 48 (1st Cir. 2000).
When considering a motion to dismiss, a court must accept as true allof a plaintiff's well-pleaded factual averments and indulge everyreasonable inference in the plaintiff's favor. See Correa-Martinez v.Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990). Pursuant to thisstandard, the Court lays out the facts of the case below.
Plaintiff, Angela Hinkley, was born on December 27, 1975. In 1981,Hinkley began attending first grade at Shirley Elementary School. Now aresident of Greenville, Maine, she was about five or six years old at thetime. Defendant, Charles Baker, was Hinkley's teacher. Baker taughtkindergarten through third grade at Shirley Elementary, a two-roomschoolhouse.
In her Complaint, Hinkley alleges that between approximately 1982 and1985, Baker often touched her and other students in a sexuallyinappropriate manner. Specifically: (1) Baker would hug and squeezeHinkley while kissing her face and nibbling her ears; (2) Baker wouldstand behind Hinkley, place his hand inside the front of her shirt, andfeel her bare chest; (3) Baker would order Hinkley and other students torub his back and comb his hair; (4) Baker would take Hinkley to sit on asmall bed in the back of the classroom for sick students, and there hewould hug her, kiss her ears, and blow in her ears and down her neck; and(5) while sitting on the sick bed, Baker would order Hinkley to strokehis neck and back. In addition, Baker occasionally would take Hinkleysledding. While sledding, Baker would make Hinkley sit between hislegs, with her back and buttocks pressed against his groin. When thesled would stop, Baker would roll over on top of Hinkley, and remainlaying on top of her for an extended period of time.
A decade and a half later, on December 13, 1999, Hinkley filed herComplaint against Baker, alleging violations of her Due Process rights,actionable under section 1983 of the Civil Rights Act (CountI).1 As well, Hinkley seeks damages through threecommon law claims: assault (Count II), intentional infliction ofemotional distress (Count III) and negligent infliction of emotionaldistress (Count IV). In addition, Hinkley claims that Baker shouldbe ordered to pay punitive damages (Count V). Baker specificallyargues that the Court should dismiss Counts I, II and IV.2The Court now considers those counts.
A. Section 1983 (Count I)
Section 1983 of the Civil Rights Act, 42 U.S.C. § 1981 —2000h-6 creates a cause of action against persons acting "under color ofany statute, ordinance, regulation, custom, or usage . . ." who areresponsible for the "deprivation of any rights, privileges, or immunitiessecured by the Constitution and laws. . .". 42 U.S.C. § 1983.Thus, to state a claim under section 1983, "a plaintiff must allege (1)the violation of a right protected by the Constitution or laws of theUnited States and (2) that the perpetrator of the violation was actingunder color of law." Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 621(1st Cir. 2000).
Defendant does not contest the fact that as a schoolteacher, he actedunder the color of law. See Doe v. Rains County Indep. Sch. Dist.,66 F.3d 1402, 1406-07 (5th Cir. 1995) (noting that schoolteacher whomolested child while at school acted under color of law). Rather,Defendant argues that (1) the alleged conduct is not severe enough toamount to a violation of Plaintiff's constitutional rights and (2)Defendant should be protected from a section 1983 claim by qualifiedimmunity.
1. Severity of the Conduct
Federal courts have recognized that "the right to be free from sexualabuse at the hands of a public school teacher is clearly protected by theDue Process Clause of the Fourteenth Amendment." Doe v. ClaiborneCounty, 103 F.3d 495, 506 (6th Cir. 1996) (citing Abeyta v. Chama ValleyIndep. Sch. Dist., 77 F.3d 1253, 1255 (10th Cir. 1996); Doe v. TaylorIndep. Sch. Dist., 15 F.3d 443, 451-52 (5th Cir. 1994); Stoneking v.MacLean-Stevens Studios Bradford Area Sch. Dist., 882 F.2d 720, 722 (3rdCir. 1988)). This principle stems from Hall v. Tawney, 621 F.2d 607 (4thCir. 1980), in which the Fourth Circuit held that a teacher corporallypunishing a student could amount to a section 1983 claim. See id. at613. The Hall court based its holding on "the right to be free of stateintrusions into realms of personal privacy and bodily security throughmeans so brutal, demeaning, and harmful as literally to shock theconscience of a court." Id.
Relying on Hall, Defendant contends that his behavior was no sobrutal, demeaning or harmful as to shock the conscience. After all,Plaintiff does not allege that Defendant had sexual intercourse withher, although many section 1983 cases involve teachers having intercoursewith their students. See Claiborne, 103 F.3d at 501 (teacher havingsexual intercourse with student); Rains, 66 F.3d at 1406-07 (same);Taylor, 15 F.3d at 451-52 (same); Doe v. Manson, No. 99-262-P, 2000 WL893396 at *1 (D.Me. June 22, 2000) (same). As well, Defendant assertsthat because Plaintiff was only a young child at the time of the allegedmolestation, her breasts had not yet developed, so touching her chest didnot violate her bodily integrity. Finally,Defendant makes the argument that all of the alleged conductcould have innocent explanations.
The Court disagrees with Defendant's arguments, even though precedentmay not be clear as to what types of sexual misconduct are sufficient tostate a claim under section 1983. Although many of the opinionsexplicitly describe the behavior, many of the opinions use only vaguelanguage to characterize the events that occurred. See Stoneking v.Bradford Area Sch. Dist., 882 F.2d 720, 722 (3rd Cir. 1988) (teacher andhigh school student engaged in "various sexual acts"); Doe v. Sch.Admin. Dist. No. 19, 66 F. Supp. 2 d 57, 60-61 (D.Me. 1999) (teachercommitted "sexual misconduct" and had "sexual relations" with high schoolstudents); Wilson v. Webb, 869 F. Supp. 496, 496 (W.D.Ky. 1994) (teacher"sexually harassed and molested" two high school students); Sowers v.Bradford Area Sch. Dist., 694 F. Supp. 125, 127-28 (W.D.Pa. 1988)(teacher "sexually molested," committed "sexual abuse" and did "sexuallymolest and/or harass" high school students), vacated, Smith v. Sowers,490 U.S. 1002 (1989). From such opinions, it is impossible to discernexactly what happened that shocked the conscience, because the gravity ofthe conduct was not in dispute in these cases.
Only a few cases have examined whether the defendant's alleged conductwas sufficient to shock the conscience. In Abeyta, the Tenth Circuitheld that it did not amount to sexual abuse actionable under section 1983when a teacher repeatedly called a twelve-year old girl a "prostitute" infront of the class for a period of several weeks. See id. at 1255-56.In arriving at this conclusion, the court found it significant that therehad been no allegations of "sexual assault, molestation, or touching ofany sort." Id. at 1255. In Boldthen v. Indep. Sch. Dist. No. 2397,865 F. Supp. 1330 (D.Minn. 1994), the court held that a twelve-year oldplaintiff had no section 1983 claim against a school principal for pattingher on the back or on the hand, even though the principal knew that thestudent feared her. See id. at 1334, 1337. Although the plaintiff inthat case cited several cases of sexual abuse supporting her section 1983claim, the plaintiff did not allege that this patting was at all sexualin nature. See id. at 1337.
On the other hand, in Doe v. Beaumont I.S.D., 8 F. Supp.2d 596(E.D.Tex. 1998), the court found that a teacher's alleged touching of theplaintiffs' breasts could constitute sexual abuse that shocked theconscience. See id. at 606-07. In Beaumont, two eleven year-old fourthgrade girls complained that one of the schoolteachers would drape his armover their shoulders, with his hand touching their chest areas. See id.at 602-03. The defendant argued that this type of touching did not riseto the level of sexual abuse that shocked the conscience. See id. at605. After analyzing the relevant case law, the court stated that itfelt uncomfortable "gauging social norms" of whether touching a girl'sbreasts was shocking. See id. at 607. Denying summary judgment, thecourt held that it would hear all of the evidence before deciding whetherthe alleged conduct could or could not rise to a level that shocks theconscience. See id.
The within Plaintiff argues that Defendant's conduct resembles thebehavior exhibited by the teacher in Beaumont. Defendant states thatBeaumont was decided wrongly because the touching in that case does notshock the conscience, pursuant to the Hall standard. See Hall, 621 F.2dat 613; Beaumont, 8 F. Supp.2d at 607. Rather, Defendant implies thatgenital touching or sexual intercourse is necessary to state a claim forsexual abuse under section 1983.3 This Court disagrees,and finds that Beaumont was decided correctly: a teacher touchinga girl's breasts can shock the conscience. See Beaumont, 8 F. Supp.2dat 607.
Next, Defendant argues that at the time of the alleged conduct,Plaintiff was a prepubescent child with undeveloped breasts, so touchingher chest area cannot be considered sexual abuse that shocks theconscience.4 In Beaumont, there was no discussion as to whether ornot the eleven year-old plaintiffs were developed at the time of theiralleged molestation. Although the court did refer to the plaintiffs ashaving "breasts" once in the opinion, the court otherwise used the phrase"chest area" to describe where the teacher touched them. See Beaumont,8 F. Supp.2d at 602-03. Thus, it was not important to the Beaumont courtwhether or not the plaintiffs were developed. See id. Furthermore, thedefendant in Beaumont touched the girls' chest areas over theirclothing, while the within Plaintiff accuses Defendant of reachingunderneath her shirt to touch her chest. See id. Moreover, the Courtagrees with Plaintiff's argument that a young girl understands her chestto be one of her "private parts". (Pl.'s Obj. to Def.'s Mot. to Dismissat 8 (Docket #25).) Whether or not the within Plaintiff was developedduring the time of the alleged incidents, Defendant's alleged conduct— which included not only touching her bare chest, but alsokissing, nibbling, rubbing and holding Plaintiff against his body— violated her bodily integrity.
Finally, Defendant argues that all of the alleged conduct — theneck kissing, ear nibbling, ear blowing, back rubbing, hair combing,chest touching and sledding — could have innocent explanations.For motions to dismiss for failure to state a claim, however, thestandard is to accept the plaintiff's allegations as true and to give theplaintiff the benefit of every reasonable inference. See Cooperman v.Individual Inc., 171 F.3d 43, 46 (1st Cir. 1999); Correa-Martinez, 903F.2d at 52. Thus, the Court must accept Plaintiff's characterization ofthe facts: that the incidents of physical contact were not innocent.Accepting Plaintiff's allegations, the Court concludes that Defendantviolated Plaintiff's bodily integrity in contravention of the Due ProcessClause of the Fourteenth Amendment.
2. Qualified Immunity
Next, Defendant argues that the section 1983 claim must be dismissedbased on the doctrine of qualified immunity. This doctrine immunizesstate actors from legal action if they objectively had no reason to knowthat their conduct violated federal law. See, e.g., Buenrostro v.Collazo, 973 F.2d 39, 42 (1st Cir. 1992).
Through the medium of qualified immunity, the law strives to balance its desire to compensate those whose rights are infringed by state actors with an equally compelling desire to shield public servants from undue interference with the performance of their duties and from threats of liability which, though unfounded, may nevertheless be unbearably disruptive.
Id. (citing Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)). "Hence,state officials exercising discretionary authority are entitled toqualified immunity insofar as their conduct does not transgress clearlyestablished constitutional or federal statutory rights of which areasonably prudent official should have been aware." Iacobucci v.Boulter,193 F.3d 14, 21 (1st Cir. 1999) (quoting Buenrostro, 973 F.2d at42)).
However, just because a court has not previously found that a specificact is unlawful, that does not mean that those acting under color of lawmay commit such acts with impunity. See Anderson v. Creighton,483 U.S. 635, 640 (1987). Rather, "in the light of pre-existing law theunlawfulness must be apparent." Id. "Where an official could beexpected to know that certain conduct would violate statutory orconstitutional rights, he should be made to hesitate. . . ." Harlow, 457U.S. at 819.
Defendant argues that between 1982 and 1985, it was not clearlyestablished that his conduct violated Plaintiff's constitutional right tobodily integrity, so qualified immunity protects him from Plaintiff'ssection 1983 claims. However, Hall, decided in 1980, put educators onalert that they were under a constitutional duty not to violate thebodily integrity of their students. See Hall, 621 F.2d at 613; see alsoIngraham v. Wright, 430 U.S. 651, 673 (1977) (noting that there is ahistoric liberty "to be free from and to obtain judicial relief, forunjustified intrusions on personal security."). Accepting all allegedfacts and drawing all reasonable inferences in Plaintiff's favor, areasonable person in Defendant's position would have known that hisconduct violated Plaintiff's bodily integrity. See Stoneking, 882 F.2dat 726-27 (3rd Cir. 1988) (denying qualified immunity even though priorprecedent had not yet established that sexual molestation ofschoolchildren amounted to a violation of their constitutionalrights);5 Beaumont I.S.D., 8 F. Supp.2d at 607, 613 (applyingqualified immunity to school principal, but, without discussion, notapplying it to teacher who molested student). Therefore, the Court findsthat Defendant is not entitled to qualified immunity.
Thus, the Court declines to dismiss Plaintiff's section 1983 claim.6
B. Assault (Count II)
Regarding Plaintiff's assault claim, Defendant argues that the statuteof limitations has run on bringing such a tort claim. Because thealleged conduct occurred while Plaintiff was a minor, the statute oflimitations did not begin to run until she reached the age of majority,on December 27, 1993. See 14 M.R.S.A. § 853. Assault claims have atwo-year statute of limitations. See 14 M.R.S.A. § 753. Accordingto Defendant, Plaintiff's claim for assault ran on December 27, 1995.
Plaintiff argues that she is entitled to an extended limitations periodbecause the assault involved sexual misconduct. See 14 M.R.S.A. §752-C.
Actions based upon sexual intercourse, as defined in Title 17-A, section 556, subsection 1-B, or a sexual act, as defined in Title 17-A, chapter 11, with a person under the age of majority must be commenced within 12 years after the cause of action accrues, or within 6 years of the time the person discovers or reasonably should have discovered the harm, whichever occurs later.
14 M.R.S.A. § 752-C. Plaintiff's argument, however, fails becausethe conduct she alleges does not fall within the specific definitions of"sexual intercourse" or "sexual act" provided in Title 17-A. Accordingto statute, "`sexual intercourse' means any penetration of the female sexorgan by the male sex organ." 17-A M.R.S.A. § 556(1-B). Plaintiffdoes not allege vaginal penetration. "Sexual act" means:
(1) Any act between 2 persons involving direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other;
(2) Any act between a person and an animal being used by another person which act involves direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other; or
(3) Any act involving direct physical contact between the genitals or anus of one and an instrument or device manipulated by another person when that act is done for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact.
A sexual act may be proved without allegation or proof of penetration.17-A M.R.S.A. § 251(1)(C). When Defendant held Plaintiff in his lapas they sledded together, Plaintiff alleges that Defendant held her backand buttocks against his groin area. Although this arguably mayconstitute contact between the genitals and anus of two persons, it wasnot direct contact because both persons were clothed at the time, sosection 251(1)(C)(1) does not apply. Cf. 17-A M.R.S.A. § 251(D)(defining the lesser "sexual contact" as including "any touching of thegenitals or anus, directly or through clothing. . ."). The conduct ofwhich Plaintiff complains does not fall within the definitions of eithersexual intercourse or sexual act, and therefore, the extended limitationsperiod does not apply. Bound by the two-year limitations period,Plaintiff's assault claim is time-barred.
C. Negligent Infliction of Emotional Distress (Count IV)
Defendant argues that Plaintiff should not be able to recover undernegligent infliction of emotional distress ("NIED") because Maine statelaw does not recognize NIED as an independent tort. Indeed, numerousMaine Supreme Judicial Court cases have held that a plaintiff may notrecover under a theory of NIED unless there is also an independent,underlying tort or contract claim. See, e.g., Gayer v. Bath Iron WorksCorp., 687 A.2d 617, 621 (Me. 1996) ("Recovery for negligent inflictionof emotional distress is premised on the existence of an underlying tortor, in limited circumstances, contract breach."); Devine v. RocheBiomedical Labs., Inc., 637 A.2d 441, 447 (Me. 1994) ("emotional distressalone may constitute compensable damage, but was not meant to create anew ground for liability. . .").
These rulings, however, are inconsistent with Gammon v. OsteopathicHosp. of Maine, Inc., 534 A.2d 1282 (Me. 1987), in which the SupremeJudicial Court "rejected as `arbitrary' the requirement that a NIED claimmust be based on an independent underlying tort and held that proof ofnegligently inflicted emotional distress itself was sufficient." Cameronv. Pepin, 610 A.2d 279, 281 (Me. 1992) (explaining Gammon, 534 A.2d at1285). Indeed, the court has permitted several plaintiffs to maintaintheir NIED claims independent of any other torts. See, e.g., Bolton v.Caine, 584 A.2d 615, 618 (Me. 1990) (allowing plaintiff to bring NIEDclaim although all other claims had failed); Gammon, 534 A.2d at 1285(same); Rowe v. Bennett, 514 A.2d 802, 806-07 (Me. 1986) (allowingplaintiff to bring NIED claim without any other causes of action).
The Supreme Judicial Court, however, appears to have clarified theapparent discrepancy in its recent decision of Bryan R.v. Watchtower Bible & Tract Soc'y, Inc., 738 A.2d 839 (Me. 1999).In Bryan R., the court stated
Although it is no longer necessary for a plaintiff to plead or prove the existence of a separate tort in order to assert a claim for negligent infliction of emotional distress, a plaintiff must nonetheless demonstrate that the defendant owed him a duty of care and must prove the breach of that duty of care by the defendant. . . . The removal of the necessity for a plaintiff to allege an underlying tort or physical impact did not create a new cause of action, but simply removed the barriers that prevented plaintiffs from proceeding with claims already recognized in Maine, when the only damage suffered was to the psyche.
Id. at 848 (internal citations omitted). Ultimately, the Law Court heldthat
[o]nly where a particular duty based upon the unique relationship of the parties has been established may a defendant be held responsible, absent some other wrongdoing, for harming the emotional well-being of another. See, e.g., Bolton v. Caine, 584 A.2d 615, 618 (Me. 1990) (holding that a physician-patient relationship gives rise to a duty to avoid emotional harm from failure to provide critical information to patient); Gammon v. Osteopathic Hosp. of Me., 534 A.2d 1282, 1285 (Me. 1987) (holding that a hospital's relationship to the family of deceased gives rise to a duty to avoid emotional harm from handling of remains); Rowe v. Bennett, 514 A.2d 802, 806-07 (Me. 1986) (holding that the unique nature of psychotherapist-patient relationship gives rise to a duty of care to the patient).
Bryan R., 738 A.2d at 848 (finding that church member could not maintainNIED suit against church because no special duty exists between churchesand their members). According to this new interpretation of the court'scase law, for a plaintiff to successfully state a claim for NIED, shemust establish either (1) an underlying tort or (2) a unique relationshipbetween herself and the defendant. See id. Indeed, a student and herteacher share a unique relationship. See, e.g., New Jersey v. T.L.O.,469 U.S. 325, 349-50 (1985) (recognizing a "special relationship betweenteacher and student", in which the "attitude of the typical teacher isone of personal responsibility for the student's welfare as well as forhis education.") (Powell, J., concurring); Bridges v. MacLean-StevensStudios, Inc., 201 F.3d 6, 11 (1st Cir. 2000) ("Unquestionably, theschools and the students enjoy a special relationship of trust.")(quoting Stephen Jay Photography, Ltd. v. Olan Mills, Inc., 903 F.2d 988,993 (4th Cir. 1990)); see also 17-A M.R.S.A. § 106(2) (permittingteachers to use reasonable force to discipline their students); 17-AM.R.S.A. §§ 253(F), 253(G), 254(C), 255(F) (heightening the criminalliability for teachers who have sexual contact or commit sexual acts withtheir students). Because of the teacher-student relationship betweenPlaintiff and Defendant, Plaintiff need not allege or prove a separate,underlying tort to maintain her NIED claim.7
Moreover, Plaintiff has also alleged an independent tort. Thus far,the Court has not dismissed Counts I and III (section 1983 claim andintentional infliction of emotional distress), which could stand asunderlying torts in support of her NIED claim. See, e.g., Palleschi v.Palleschi, 704 A.2d 383, 384-6 (Me. 1998) (upholding verdicts ofassault, intentional infliction of emotional distress and NIED).
Therefore, based on the reasons stated above, the Court finds thatPlaintiff has successfully stated a NIED claim.
For the reasons discussed above, Defendant's Motion is GRANTED inregard to Count II, and DENIED for all other Counts. Count II isDISMISSED WITH PREJUDICE.
1. In the Complaint, Hinkley names Baker as a defendant in both hisindividual and official capacity. The parties now agree that Baker is adefendant only in an individual capacity.
2. Although Defendant requests that the Court dismiss all ofPlaintiff's claims, Defendant does not address Counts III or V in theMotion to Dismiss. In response to Count III, Defendant has filed aMotion for Partial Summary Judgment on Plaintiff's claim of intentionalinfliction of emotional distress. (See Docket #9.) Therefore, the Courtignores Counts III and V for the purposes of the Motion to Dismiss.
3. To the extent that Defendant suggests that an allegation of genitaltouching is necessary to state a section 1983 claim, Plaintiff hasalleged that "While sledding, Defendant would make Plaintiff sit betweenhis legs, with Plaintiff's back and/or buttocks pressed firmly againstDefendant's groin." (Pl.'s Compl. ¶ 10(d) (Docket #1).) See R.M.R.v. Muscogee County Sch. Dist., 165 F.3d 812, 814 (11th Cir. 1999) (notingthat teacher touched middle school student's groin, then placed child'shand on teacher's groin, with implication that the touching was throughtheir clothing).
4. The Court notes that the current record does not reflect whether ornot Plaintiff had developed breasts at the time of the allegedincidents.
5. In discussing qualified immunity regarding abuse that occurred from1980 to 1985, the Stoneking court noted that It may seem ludicrous to beobliged to consider whether it was "clearly established" that it wasimpermissible for school teachers and staff to sexually molest students.Nonetheless, we construe the proper inquiry as whether it was establishedthat the students' rights were constitutionally based. Applying thisstandard, we reiterate the conclusion we reached [in a prior order] thatthe constitutional right [the plaintiff] alleges, to freedom frominvasion of her personal security through sexual abuse, waswell-established at the time the assaults upon her occurred. Stoneking,882 F.2d at 726.
6. Because the Court permits Plaintiff's section 1983 claim toproceed, Defendant's argument that this Court should decline jurisdictionover the case is irrelevant.
7. Defendant also suggests that according to Rippett v. Bemis,672 A.2d 82 (Me. 1996), any potential damages under the NIED claim couldbe subsumed by Plaintiff's other claims. See id. at 87-88. Rippett,however, is not applicable because the facts of that case were particularto defamation cases. See id. In that case, the defendant's allegeddefamatory statement, as a matter of law, was either slander per se or aprivileged statement. See id. If the court found it to be privileged, itwould have been privileged in regards to the NIED claim as well. Seeid. On the other hand, if the court had found the statement not to beprivileged, then plaintiff's potential damages under a defamation theorywere equal to potential damages under NIED. See id. Thus, the specificfacts of Rippett enabled the court to neatly subsume the NIED claim, andRippett does not apply to the instant case. See id.