135 F. Supp.2d 199 (2001) | Cited 0 times | D. Maine | March 5, 2001


Before the Court is a Motion to Dismiss by Defendants Maine SchoolDistrict No. 53 ("MSAD 53") and Terrance A. McCannell, Superintendent ofMSAD 53 (Docket #5), as well as a separate Motion to Dismiss byDefendants Maine Central Institute, Douglas Cummings, and John Marquis("MCI Defendants") (Docket #11).For the reasons discussed below, the Court DENIES both motions to dismiss.


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 amotion to dismiss, a court must accept as true all of a plaintiff'swell-pleaded factual averments and indulge every reasonable inference inthe plaintiff's favor. See Correa-Martinez v. Arrillaga-Belendez,903 F.2d 49, 52 (1st Cir. 1990). Pursuant to this standard, the Courtlays out the facts of the case below.


During the 1999-2000 school year, Plaintiff Zachariah Logiodice("Zach") was a seventeen year-old student residing within MSAD 53.Because MSAD 53 does not operate a public high school, Zach attendedMaine Central Institute ("MCI"), a private high school, pursuant to acontract between MSAD 53 and MCI. Prior to the events giving rise tothis case, Zach was an eleventh grade student at MCI with no priorsuspensions.

On January 19, 2000, a MCI teacher asked Zach to turn over a soft drinkthat Zach had inappropriately carried into the school gymnasium. Zachresponded to the teacher's request with profane language prompting theteacher to alert MCI's Dean of Students, Mr. Marquis ("Dean Marquis").Dean Marquis arrived at the gymnasium and questioned Zach regarding hisalleged use of profanity. After Zach admitted using profane language,Dean Marquis asked Zach to leave the gymnasium. Zach refused, saying hedid not want to miss his midterm exam that was about to start. As DeanMarquis left the room, Zach pushed aside the table at which he wassitting, stood up and directed profane language at Dean Marquis.

Dean Marquis returned to his office and immediately called DawnLogiodice, Zach's mother. Mrs. Logiodice came to the school and met withDean Marquis. At this meeting, Dean Marquis told Mrs. Logiodice thatZach would be suspended for ten days for using profanity and refusing tocomply with the requests of teachers and administrators. Zach wasallowed to complete his midterm before his mother took him home.

Later that same day, Zach's parents met with Dean Marquis again. TheLogiodices asked Dean Marquis to reconsider the length of Zach'ssuspension and also asked that their son be allowed to participate inextra curricular activities while out on suspension. Dean Marquisrefused both requests. Additionally, Dean Marquis suggested that theLogiodices consider finding Zach a counselor in light of his earlierconduct. The Logiodices agreed to consider this suggestion.

In a letter dated January 21, 2000, Dean Marquis informed theLogiodices that Zach would be suspended until at least February 2, 2000,a period of ten school days. Additionally, Dean Marquis explained thatZach would not be allowed to return to school until he "had a safetyevaluation with a psychologist or psychiatrist." (See Pl. Ex. 1 (attachedto Docket #1).)

According to the Logiodices, obtaining the requisite safety evaluationfor Zach proved difficult because their health insurance providerrequired them to obtain a referral. In fact, Mrs. Logiodice received areferral on January 28, 2000 for four licensed therapists. None of theapproved therapists were able to meet with Zach prior to February 2,2000. In light of theinability to obtain a safety evaluation during theten-day suspension, Mr. Logiodice spoke with Dean Marquis on February 1,2000 and asked that Zach be allowed to return to school the followingday. Dean Marquis explained that the safety evaluation remained aprerequisite to Zach's return to MCI. MCI's Principal, Mr. Cummings("Principal Cummings") confirmed this requirement.

On the afternoon of February 1, 2000, the Logiodices met with theSuperintendent of MSAD 53, Mr. McCannell ("Superintendent McCannell"), todiscuss Zach's continuing suspension. As a result of this meeting,Superintendent McCannell wrote a letter to Principal Cummings datedFebruary 3, 2000. (See Pl. Ex. 2 (attached to Docket #1).) In thiscorrespondence, Superintendent McCannell expressed concern that Zach'scontinued suspension violated his due process rights and that MCI shouldprovide "appropriate services for the student" pursuant to the contractbetween MSAD 53 and MCI. (Id.)

On February 2, 2000, Mrs. Logiodice obtained an appointment for Zachwith Dr. Lester. The appointment was scheduled for February 7, 2000,Dr. Lester's earliest available opening. When Mrs. Logiodice contactedPrincipal Cummings to explain that Zach would not be able to undergo asafety evaluation until February 7th, Principal Cummings insisted thatZach could not return to school until after a safety evaluation wascompleted. He refused to hold a hearing on the continued suspension orprovide Zach with tutoring in the interim. In fact, Principal Cummingstold Mrs. Logiodice that Maine's law limiting administrative suspensionsto ten school days absent school board action did not apply to publicstudents at MCI.

On February 7, 2000, Zach and the Logiodices met with Dr. Lester. Dr.Lester concluded he could not perform the safety evaluation requested byMCI although he agreed to see Zach for a series of counseling sessions.However, at the end of the first meeting, Dr. Lester expressed hisprofessional opinion that Zach's prior behavior did not suggest in any waythat Zach was a danger to himself or others.

On the evening of February 7, 2000, the Logiodices attended a regularlyscheduled meeting of the MSAD 53 School Board. At this public meeting,the Logiodices told the Board that MCI and MSAD 53 had violated and werecontinuing to violate their son's due process rights as well as Mainelaw. In response, Superintendent McCannell agreed that Zach's dueprocess rights had been violated. The Board took no immediate action inresponse to the Logiodices' comments.

On February 8, 2000, Superintendent McCannell and Principal Cummingscontacted the Logiodices and said that Zach could return to school afterhis second appointment with Dr. Lester, provided that Dr. Lester agreedto meet with school officials. Zach had his second appointment with Dr.Lester on February 9, 2000. On February 11, 2000, Dr. Lester, along withZach Logiodice and his parents, met with Dean Marquis, SuperintendentMcCannell and several MCI teachers. As a result of the meeting, Zach waspermitted to return to school on Monday, February 13, 2000. However, inthe interim, Zach had been denied educational services for seventeenschool days without the opportunity for a hearing.


On the basis of these facts, Plaintiffs press claims against DefendantsMSAD 53 and Superintendent McCannell alleging violations of42 U.S.C. § 1983 (Counts IV & V) as well as violations of Zach'srights under the Maine Constitution(Counts IX & X).1 Plaintiffs alsoallege violations of 42 U.S.C. § 1983 by each of the MCI Defendantsin (Counts I, II & III). Additionally, they assert claims against theMCI Defendants for violations of Zach's rights under the MaineConstitution (Counts VI, VII & VIII). Finally, in Count XI, Plaintiffsseek a declaratory judgment that the provisions of 20 M.R.S.A. §1001(9) apply to a private school that enrolls public students pursuantto a contract with a public school district. In order to put Plaintiffs'claims in context, the Court pauses to briefly explain some of the uniquecharacteristics of Maine's educational system.

A. Public Education in Maine

Pursuant to Maine statute, "every person within the age limitations setby state statutes shall be provided an opportunity to receive thebenefits of a free public education." 20-A M.R.S.A. § 2; see alsoMe. Const. art. VIII, pt. 1, § 1 ("[T]he Legislature are authorized,and it shall be their duty to require, the several towns to make suitableprovision, at their own expense, for the support and maintenance of publicschools."). School districts in Maine provide the opportunity for a freepublic education in a variety of ways. Given the rural nature of manyMaine communities, it is not feasible for all school districts to operatetheir own public schools for each grade. Maine statute specificallyrecognizes this possibility and provides for various alternative means ofproviding educational services including allowing school districts tocontract for school privileges with "contract schools" or pay tuition fortheir eligible students to attend either public or private schools ofthe individual student's choosing. 20-A M.R.S.A. §§ 5203 & 5204.

In a recent case upholding the constitutionality of Maine's tuitionprogram, the Maine Law Court described how these different options areutilized by Maine school districts. See Bagley v. Raymond Sch. Dept.,728 A.2d 127, 130 (Me. 1999). In relevant part, the Maine Law Courtexplained

Approximately half of the school districts in Maine satisfy their obligation by operating public elementary and secondary schools. The other half satisfy their obligation either wholly through Maine's tuition program, or by operating some schools, usually elementary, and paying tuition for students to attend only those schools which the school districts do not operate. Nearly 14,000 students attend public and approved private schools under the tuition program and approximately $70 million in public funds is expended each year by the Maine Department of Education and local school districts on tuition for students to attend these schools.

Id. In their complaint, Plaintiffs state that "[p]ursuant to a contractdated September 16, 1991, MCI is obligated to accept and provide acomprehensive program of studies for all students who are legal residentsof MSAD No. 53 and who are academically qualified to attend grades nine,ten, and eleven." (Compl. ¶ 9 (Docket #1).) Thus, on the currentrecord it appears that MCI is the contract school for all high schoolaged students within MSAD 53. See 20-A M.R.S.A. § 5204(3).

B. Section 1983 Claims

The Court now turns to an examination of Plaintiffs' claims. Inshort, Plaintiffs allege that Zach Logiodice was entitled to greaterprocedural due process than he received when he was subjected to aseventeen day suspension from MCI.

1. Procedural Due Process Requirements for a Suspension

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court held that astudent facing a suspension of ten days or less was entitled to (1) "oralor written notice of the charges against him," and if the student deniedthe charge, (2) "an explanation of the evidence" and (3) "an opportunityto present his side of the story." Id. at 581. The Court emphasizedthat the procedure may be informal and occur immediately following thealleged events. See id. at 582. In dicta, the Court noted that"[l]onger suspensions . . . may require more formal procedures." Id. at584.

In fact, Maine statute specifically allows school boards to "authorizethe principal to suspend students up to a maximum of 10 days forinfractions of school rules." 20-A M.R.S.A. § 1001(9). The samestatute gives school boards the power to order a longer suspension orexpulsion of a student "following a proper investigation of a student'sbehavior and due process proceedings" and further provides that "[a]student may be readmitted on satisfactory evidence that the behavior thatwas the cause of the student being expelled will not likely recur." Id.

In this case, the Court reads Plaintiffs' Complaint to allege that Zachsuffered a deprivation of due process when he was excluded from schoolfor more than ten days without any investigation or other due processproceedings.

2. State Action Requirement

A valid claim for deprivation of due process in violation of section1983 necessarily requires that the conduct that led to the deprivation be"fairly attributable to the State." Lugar v. Edmondson Oil Co.,457 U.S. 922, 937 (1982). In this case, because Zach was suspended froma private school Defendants argue that Plaintiffs cannot prove that stateaction was responsible for his deprivation of due process. On theundeveloped factual record currently before the Court, it is not clearwhether MSAD 53 retained its statutory powers to investigate and hold dueprocess proceedings related to the suspension of any student sent to MCI.2 If, in fact, MSAD 53 retained these statutory duties, Plaintiffs'case alleging deprivation of due process may proceed against MSAD 53.

Assuming that MSAD 53 somehow delegated its duties to MCI,3 theCourt must then determine whether MCI can be regarded as having engagedin state action when it suspended Zach Logiodice. As the Supreme Courthas recentlyreiterated, this determination is a "necessarily fact-boundinquiry." Brentwood Acad. v. Tennessee Secondary Sch. Athletic Assoc.,121 S.Ct. 924, 932 (2001) (quoting Lugar, 457 U.S. at 939). To concludethat a private school engaged in state action, the Court must find atleast one of the following: (1) that the school performed an exclusivelyand traditionally public function; (2) that the school's action wascreated, coerced or encouraged by the government; (3) that the school hada symbiotic relationship with the government; or (4) that there is an"entwinement" between the school and the state agencies with which itinteracts. Id. at 930-34 (discussing the various factors courts considerin determining whether a nominally private actor engaged in state actionsfor purpose of section 1983 liability).

On the current record, the Court cannot say that it clearly appearsthat Plaintiffs cannot recover on any of these viable theories.Alternatively, Plaintiffs may be able to prove that the MSAD 53Defendants retained the duty to provide Zach Logiodice with due processafter MCI suspended him for more than ten days. Under thesecircumstances, the appropriate course is for the Court to allow furtherfactual discovery before determining which of the Defendants, if any, canbe held liable for the alleged section 1983 violations.

Despite Defendant's arguments that the facts of this case fall squarelywithin the Supreme Court's decision in Rendell-Baker v. Kohn, 457 U.S. 830(1982), the Court finds that Rendell-Baker is not controlling based onthe Plaintiffs' allegations. Although the school in Rendell-Baker wasan independently operated private institution that provided education forstudents with special needs who were referred by public school districtsor other public entities that paid their tuition, the plaintiffs inRendell-Baker were not students. See id. at 832. The Rendell-Bakerplaintiffs alleging violations of section 1983 were employees of theprivate institution. See id. at 841-42 (explaining that the stateentities involved "showed relatively little interest in the school'spersonnel matters").

Comparatively, MSAD 53 sends all of its high school aged students toMCI, not just individual special needs students. Thus, a high schoolaged student living within MSAD 53 who wishes to "receive the benefits ofa free public education" under Maine law is sent to MCI. 20-A M.R.S.A.§ 2. More importantly, the section 1983 claims raised in this caseinvolve a claim by a student that he allegedly was denied due process,MSAD 53's appropriate interest in this matter is evidenced in thecontract as well as the actions taken by Superintendent McCannell intrying to resolve this matter. Without further factual development, theCourt simply cannot determine what amount of due process Zach Logiodicewas entitled to in connection with his suspension and who was responsiblefor ensuring that Zach Logiodice received due process.

Moreover, in light of the Supreme Court's recent opinion in Brentwoodand the unique facts of this case, the Court recognizes that this caseraises a number of novel legal questions involving a public student'srights to due process given the alternative means for providing publiceducation under Maine law. Such novel legal questions are not amenableto resolution at the motion to dismiss stage. Wright & Miller, FederalPractice and Procedure: Civil 2d § 1357 at 341-43 (1990) ("The courtshould be especially reluctant to dismiss on the basis of the pleadingswhen the asserted theory of liability is novel . . .since it is important that new legal theories be explored and assayed inthe light of actual facts rather than a pleader's suppositions.")

3. Qualified Immunity

In their separate motions to dismiss, both sets of Defendants arguethat Superintendent McCannell, Principal Cummings and Dean Marquis, theindividual school officials named as Defendants, are entitled todismissal based on qualified immunity. "Qualified immunity is anaffirmative defense, and thus the burden of proof is on [Defendants]."Dimarco-Zappa v. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001). As theFirst Circuit has explained, "[q]ualified immunity is available toofficials who err in their duties so long as the mistake is one that areasonable [official] could have made, and the standard is favorable tothe officer, protecting all but the plainly incompetent and those whoknowingly violate the law." Liu v. Phillips, 234 F.3d 55 (1st Cir. 2000)(internal citations and quotations omitted).

Determining whether a claim against an individual defendant is barredby qualified immunity requires a two-prong analysis. First, "the courtmust establish whether the constitutional right asserted by the plaintiffwas `clearly established' at the time of the alleged violation."Fletcher v. Town of Clinton, 196 F.3d 41, 48 (1st Cir. 1999) (quotingSt. Hilaire v. City of Laconia, 71 F.3d 20, 24 (1st Cir. 1995)).Second, the Court must ask whether a reasonable, similarly situatedofficial "should have understood that the challenged conduct violated[the plaintiff's] established right." Id.

Turning to the first question, for a right to be "clearly established"the contours of the alleged right "must be sufficiently clear that areasonable official would understand that what he is doing violates thatright." Anderson v. Creighton, 483 U.S. 635, 640 (1987). At thisstage, it appears that at a public school, Zach would have had a clearlyestablished right to "a proper investigation of a [his] behavior and dueprocess proceedings" by the MSAD 53 school board before facing asuspension beyond ten school days.4 20-A M.R.S.A. § 1001(9).Whether Zach continued to have this right while he attended MCI involvesa factual inquiry, which the Court has previously explained is bestargued on a more developed factual record. Moreover, assuming Zachcontinued to have a right to due process proceedings, mixed questions offact and law remain as to whether MSAD 53 or MCI was responsible forensuring Zach due process in connection with the alleged suspension.Arguably, given this confusion, one or more of the individual Defendantsmay ultimately be able to prove that Plaintiff's rights were not "clearlyestablished." However, without factual clarification regarding therelationship between MSAD 53 and MCI, the Court is simply unable to saythat Plaintiff's clearly established right to due process at a publicschool was lost because MSAD 53 arranged for him to attend MCI.

With regard to the second element of a qualified immunity defense, theCourt turns its attention to the letter from Superintendent McCannell,dated February 3, 2000, in which he writes, in relevant part, "[W]e havethe due process rights of the individual students to consider. In thiscase, holding a student out beyond the ten-day suspension as allowed bystatute, infringes upon [Zach's] rights." (Letter from TerranceMcCannell, Superintendent, MSAD 53, to Douglas Cummings, Principal, MCIat 2 (Feb. 3, 2000) (Pl. Ex. 2 (attached to Docket #1)).) Based on thisletter, it appears Superintendent McCannell was aware that the suspensionat issue violated Zach's due process rights on or before February 3,2000. Additionally, after receiving this letter, Principal Cummingsreasonably should have know that the continued suspension without anyfurther proceedings infringed on Zach's due process rights. On thecurrent record, it is unclear whether Dean Marquis read this letter.5However, the Court finds that upon writing or reading this letter areasonable school official would take steps to provide a suspendedstudent with due process.

Accepting Plaintiffs' factual averments and construing all reasonableinferences in Plaintiffs' favor, the Court concludes that issues of factremain regarding whether Zach continued to have a clearly establishedright to due process while attending MCI. Additionally, Plaintiffs'allegations, if proven, establish that the conduct of one or more of theindividual Defendants was not objectively reasonable. See Miller v.Kennebec County, 219 F.3d 8, 10 (1st Cir. 2000) (concluding that it wasinappropriate for Court to grant summary judgment for officer when it wasnot clear that the officer's conduct was "objectively reasonable").Thus, although the Court may very well find on the developed factualrecord that the individual Defendants are protected by qualifiedimmunity, at this early stage, the Court cannot conclude that any of theindividual Defendants are entitled to qualified immunity.


For these reasons, the Court hereby DENIES both of Defendants' Motions toDismiss (Docket #s 5 & 11).


1. Defendants do not offer separate arguments regarding Plaintiffs'state claims. Generally, "the rights guaranteed by the United StatesConstitution and Maine Constitution are coextensive." Bagley v. RaymondSch. Dept., 728 A.2d 127, 132 (Me. 1999), cert. denied, 528 U.S. 947(1999). Thus, the Court need not separately discuss Plaintiffs' claimsunder the Maine Constitution.

2. Given this uncertainty, the Court does not address the attendantlegal question, namely, whether Maine law allows the MSAD 53 School Boardto delegate such powers to a private contract school.

3. The Court notes that under the contract between MSAD 53 and MCI,the Trustees of MCI "have the sole right to promulgate, administer andenforce all rules and regulations pertaining to student behavior,discipline and all use of the buildings and grounds of [MCI]." (Ex. A at1 (attached to Docket #13).) Despite this broad delegation of authority,it remains unclear whether MCI retains sole responsibility for any MSAD53 student who is suspended or expelled from MCI or whetherresponsibility for such a student reverts back to MSAD 53.

4. Arguably, a right to "proper investigation" and "due processproceedings" is not so clear for every school official to know the outerlimits of what is required for a suspension of more than ten days.Nonetheless, a reasonable school official would know that the completefailure to provide any type of investigation or hearing for a suspensionlasting longer than ten days violated due process. In this case, it isclear that Defendants did not offer any type of further investigation orhearing until February 11, 2000. In fact, Plaintiffs allege thatPrincipal Cummings affirmatively refused to hold a hearing during aFebruary 2, 2000 conversation with Mrs. Logiodice.

5. With regard to Principal Cummings and Dean Marquis, there remainsan additional question regarding whether they should be considered stateactors or private actors for purposes of Plaintiffs' claims. If it isultimately determined that these individual MCI Defendants were privateschool officials "acting under the color of state law," the Court notesthat legal questions remain regarding whether Principal Cummings and DeanMarquis are entitled to qualified immunity as private actors. CompareRichardson v. McKnight, 521 U.S. 399, 412 (1997) (concluding privatelyemployed prison guards were not entitled to qualified immunity), withFrazier v. Bailey, 957 F.2d 920, 929 (1st Cir. 1992) (concluding thatprivately employed social workers performing investigations under statecontract were entitled to qualified immunity). Assuming for the momentthat the Court must reach this legal question, it is best resolved on amore complete factual record than is currently available.

Back to top