A federal judge from the District of Maine has granted a school district’s motion to dismiss the claim brought by the mother of a high school student who suffered a concussion and other injuries on a skiing excursion and was taken to the hospital, allegedly against his will. In so ruling, the judge found that plaintiff Bethany Berry, who was suing Regional School Unit 13 (RSU 13) and several individual defendants, on behalf of her minor son (identified as HNBV), failed to raise any Constitutional issues.
The incident in question occurred on January 20, 2014, after the RSU 13 Ski Club at Oceanside transported HNBV and other students to Sugarloaf Mountain in Franklin County, Maine. While skiing, HNBV fell and lost consciousness, suffering a concussion and other injuries.
The plaintiff claimed that HNBV asserted his Fourteenth Amendment procedural due process right to refuse medical treatment and declined to go in an ambulance. However, the individual defendants allegedly forced HNBV to board the ambulance. In the wake of his injuries, HNBV experienced a “sensitivity to light, sound, and temperature due to the concussion,” according to the court. HNBV also allegedly defecated on himself and was forced to remain in his own excrement for hours before he was released.
In the months that followed, HNBV was allegedly “hazed and bullied for the injuries he had sustained on January 20, 2014. He claims that both Oceanside faculty and students verbally and physically hazed him for wearing sunglasses.”
Among the theories of action alleged by the plaintiff were:
(1) Count One—a 42 U.S.C. § 1983 claim for excessive force under the Fourth Amendment.
(2) Counts Two, Three, and Four—42 U.S.C. § 1983 claims for the defendants’ failure to establish or maintain adequate written policies, procedures, and guidelines for Oceanside ski trips, governing the use of safety equipment, the constitutional right of a student to refuse treatment, the need to have an emergency contact when a student is injured, the failure to establish policies of proper decorum when a student is injured, the failure to have a use-of-force policy, the failure to have a written policy on responding to an injured student, the failure to establish a buddy system for the field [*7] trip, the failure to have a written policy on how to respond to a student’s dental injury, the failure to have a written policy on the use of chest restraints, the failure to have a written policy on hypothermia for students attending a high school ski trip, the failure to have a written policy on basic first aid, the failure to have a written policy on proper handwashing procedures, the failure to have a written policy on how to ski within control, the failure to have a written policy on inspection of student ski equipment, the failure to have a written policy for maintaining RSU 13 employee electronic mail to respond to Maine public document requests, and the failure to have a written policy about the proper investigation of allegations of student hazing.
(3) Count Five—42 U.S.C. § 1983 claim for violation of a custom or policy of RSU 13 policy JJIF, Management of Concussion and Other Head Injuries.
(4) Count Six—42 U.S.C. § 1983 claim for violation of RSU 13 policy CHD for failure to inform the RSU 13 School Board of the need for policies set forth in Counts Two through Four.
(5) Count Seven—42 U.S.C. § 1985(3) claim because two or more defendants interfered with HNBV’s civil rights as described in Counts Two through Four.
(6) Count Eight—42 U.S.C. § 1983 claim for violation of procedural and substantive due process in the United States and Maine Constitutions for hazing and bullying HNBV and a 20-A M.R.S. §§ 6553-54 claim for hazing and bullying HNBV.
The court summarized the defendants’ argument as follows: “This lawsuit is about a skiing accident that occurred during a school-sponsored ski trip and should be resolved as a tort claim, not a federal civil rights action.”
Further, it concluded that “although the plaintiff may (or may not) have a tort action against the school district, he does not have a civil rights action against the school district. The court understands why the circumstances of the skiing accident were highly upsetting to the plaintiff and his mother, but the facts simply do not justify a civil rights complaint.”
Bethany A. Berry, o/b/o Minor Child HNBV v. RSU 13 School Board, et al., D. Maine; 2:15-cv-00146-JAW, 2016 U.S. Dist. LEXIS 23903; 2/24/16
Attorneys of Record: (for plaintiff) Pro se, Rockland, ME. (for defendants) Melissa A. Hewey, Drummond Woodsum, Portland, ME.
