NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-358
S. DOE 1
vs.
AARON JONCAS, METCO DIRECTOR OF CONCORD & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On December 19, 2022, final judgment entered against
plaintiff S. Doe 3 after a Superior Court judge allowed a motion
to dismiss the last of S. Doe's seven claims in her May 26, 2017
complaint. S. Doe then filed a notice of appeal on behalf of
herself and her disabled minor son, A. Doe. In an unpublished
1"S. Doe" is a pseudonym that the plaintiff assigned to herself in the complaint.
2Jessica Murphy, director of special education in the Concord Public Schools; and Diana Frost Rigby, former superintendent of the Concord Public Schools. S. Doe brought claims against each defendant in their individual and official capacities. During the pendency of the Superior Court action, Rigby's successor, Laurie Hunter, was substituted for Rigby to the extent S. Doe brought claims against Rigby in her official capacity. See Mass. R. Civ. P. 25 (d), 365 Mass. 771 (1974).
3 S. Doe is a self-represented non-attorney litigant. decision, another panel of this court affirmed the allowance of
a motion to strike S. Doe's child from the appeal. S. Doe v.
Aaron Joncas, METCO Dir. of Concord, 105 Mass. App. Ct. 1107
(2024). In this appeal, S. Doe challenges (1) the allowance of
the motion to dismiss three of her claims for failure to exhaust
administrative remedies, (2) the denial of her motion to amend
her complaint to add claims for libel and slander, and (3) the
allowance of a motion to dismiss her intentional infliction of
emotional distress (IIED) claim for failure to comply with a
motion to compel discovery. 4 We affirm.
Background. We summarize only so much of the extensive
procedural history and factual background as is necessary to
provide context for our discussion on the issues presented on
appeal. On May 26, 2017, plaintiff, S. Doe, filed a complaint
on behalf of herself and her son, A. Doe, against employees of
4 The plaintiff also challenges the denial of her motion to "set aside void order and judgment" because the appointment of A. Doe's guardian ad litem violated her and A. Doe's due process rights. As the judge who initially ruled on the motion to appoint a guardian ad litem noted, S. Doe, who is appearing pro se, could not represent the interests of her minor child. See G. L. c. 221, § 46A ("No individual, other than a member, in good standing, of the bar of this commonwealth shall practice law"). She therefore lacks standing to appeal the denial of the motion. See Corbett v. Related Cos. Northeast, Inc., 424 Mass. 714, 718 (1997) ("As a general rule, only parties to a lawsuit, or those who properly become parties, may appeal from an adverse judgment"). A. Doe has not appealed and, as another panel of this court concluded, S. Doe does not have the authority to appeal on A. Doe's behalf. S. Doe, 105 Mass. App. Ct. 1107.
2 the Concord Public Schools and the Metropolitan Council for
Educational Opportunity (METCO) (collectively, defendants). 5 The
complaint alleged that the defendants discriminated against A.
Doe based on his disability and his race and thereby inflicted
emotional distress on him. 6
On October 22, 2018, another Superior Court judge allowed
the defendants' motions to dismiss as to all claims except A.
Doe's IIED claim. In November 2019, S. Doe was allowed to amend
her complaint to add her own cause of action for IIED. On
September 16, 2020, A. Doe was appointed a guardian ad litem to
represent his interests. 7
5 S. Doe also named Joel Krakow, a Problem Resolution System specialist for the Massachusetts Department of Elementary and Secondary Education as a defendant. On July 10, 2018, a motion to dismiss the claims against Krakow was allowed. S. Doe first raised a challenge to the dismissal of the claims against Krakow in her reply brief. As a result we decline to address S. Doe's arguments as to Krakow. See Mass. R. A. P. 16 (c), as appearing in 481 Mass. 1628 (2024) ("No new issues shall be raised in the reply brief").
6 In total, S. Doe filed seven claims alleging (1) violation of the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983 and of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H-11I; (2) discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134; (3) discrimination in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794; (4) violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.; (5) violation of the Metropolitan Council for Education Opportunity statute, G. L. c. 76, § 12A; (6) emotional distress; and (7) intentional infliction of emotional distress. 7 A. Doe settled his IIED claim through his guardian ad
litem in July 2022.
3 On November 6, 2020, the defendants then moved to compel S.
Doe to produce her medical and mental health treatment records
beginning from January 1, 2010, concerning her treatment for
IIED or any other mental health issues. On March 16, 2021, that
motion was allowed, and S. Doe's subsequent motion for a
protective order to prohibit discovery was denied on April 30,
2021. On December 19, 2022, the court, noting that the
materials S. Doe submitted were "wholly inadequate to meet [her]
obligations," allowed a motion to dismiss for failure to comply
with the discovery order. See Mass. R. Civ. P. 37 (b) (2), as
amended, 390 Mass. 1208 (1984). As noted supra, the plaintiff
then filed a "motion to set aside void order and judgment,"
which was denied on July 20, 2023. This appeal followed.
Discussion. 1. The motion to dismiss claims one through
three. "We review the grant of a motion to dismiss de novo."
Lanier v. President and Fellows of Harvard College, 490 Mass.
37, 43 (2022). To survive dismissal, a complaint must provide
some grounds from which to conclude a plaintiff is entitled to
relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
(2008).
In allowing the motion to dismiss as to S. Doe's first
through third claims, 8 the motion judge found that, because the
8 The judge dismissed S. Doe's fourth through sixth complaints for failure to state claims upon which relief could
4 gravamen of S. Doe's claims concerned her disabled child's
access to a free appropriate public education, the claims were
subject to the Individuals with Disabilities Education Act's
(IDEA) requirement that plaintiffs first exhaust administrative
remedies. See 20 U.S.C. § 1415(l); Fry v. Napoleon Community
Sch., 580 U.S. 154, 155 (2017) (plaintiff's non-IDEA claims
concerning guarantee of free appropriate public education to
child with disabilities subject to IDEA exhaustion provision).
However, five years after the judge allowed the motion to
dismiss, the Supreme Court of the United States clarified that
the IDEA's exhaustion requirement only applies to claims which
seek remedies available under the IDEA. Luna Perez v. Sturgis
Pub. Sch., 598 U.S. 142, 147-148 (2023). Because the IDEA does
not provide for compensatory damages as a remedy, and S. Doe
seeks "special and general damages," S. Doe's failure to exhaust
administrative remedies did not warrant dismissal of her claims.
See Luna Perez, supra.
Nevertheless, we conclude that dismissal was warranted,
because S. Doe's first three claims failed to provide grounds
from which we could conclude that she is entitled to relief.
be granted. Therefore, to the extent that S. Doe argues that these claims were erroneously dismissed for failure to exhaust administrative remedies, such arguments are unavailing because they challenge grounds that the judge did not rely on to dismiss the claims.
5 See Iannacchino, 451 Mass. at 636; Commonwealth v. Va Meng Joe,
425 Mass. 99, 102 (1997) ("An appellate court is free to affirm
a ruling on grounds different from those relied on by the motion
judge if the correct or preferred basis for affirmance is
supported by the record and the findings").
a. The due process claim. S. Doe alleges in her first
claim that the defendants violated her rights under the due
process clause of the Fourteenth Amendment to the United States
Constitution because, by denying her son attendance at the
Willard School, the defendants inflicted emotional trauma on S.
Doe and A. Doe that interfered with the parent-child
relationship. The due process clause's protection of parents'
rights involves "the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children." Blixt v. Blixt, 437 Mass. 649, 653 (2002), quoting
Troxel v. Granville, 530 U.S. 57, 66 (2000). S. Doe did not
allege that the defendants interfered with her right to make
decisions concerning the care, custody, and control of A. Doe,
and does not otherwise identify a right protected by the due
process clause that the defendants violated. See Troxel, supra
at 66. Accordingly, her complaint cannot be read to state a
claim for relief for S. Doe under the due process clause. See
Iannacchino, 451 Mass. at 636.
6 To the extent that S. Doe also alleges in her first claim
the same conduct violated the Massachusetts Civil Rights Act,
she fails to allege that any interference with her rights was
accomplished by threats, intimidation, or coercion. See Bally
v. Northeastern Univ., 403 Mass. 713, 717 (1989) ("To establish
a claim under the Massachusetts Civil Rights Act . . .
[plaintiff] must prove . . . that the interference or attempted
interference was by threats, intimidation or coercion"
[quotation and citation omitted]); G. L. c. 12, § 11H.
b. The Americans with Disabilities Act and Rehabilitation
Act claims. S. Doe does not allege that she herself is a
qualified individual with a disability who has been excluded
from participation in or denied the benefits of the services,
programs, or activities of a public entity, or subjected to
discrimination. See 42 U.S.C. § 12132. Nor does she allege
that she is a qualified individual with a disability who, by
reason of her disability, was excluded from participation in,
denied the benefits of, or subjected to discrimination under any
program receiving federal financial assistance. See 29 U.S.C.
§ 794(a). Accordingly, S. Doe does not state claims for relief
under the Americans with Disabilities Act or the Rehabilitation
Act, and her second and third claims were properly dismissed.
See Iannacchino, 451 Mass. at 636.
7 2. The motion to amend. "We review the denial of a motion
to amend the complaint for abuse of discretion." Dzung Duy
Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 461
(2018). "Although leave to amend should be 'freely given when
justice so requires,' Mass. R. Civ. P. 15 (a), 365 Mass. 761
(1974), such leave may be denied where there is undue delay,
undue prejudice to the opposing party, or futility in the
amendment." Id.
"The litigation privilege generally precludes civil
liability based on statements by a party, counsel or witness in
the institution of, or during the course of, a judicial
proceeding, as well as statements preliminary to litigation that
relate to the contemplated proceeding" (quotations and citation
omitted). Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 140
(2017). "To determine whether a proceeding is sufficiently
judicial or quasi judicial in nature to apply an absolute
privilege, we must examine the operation and mechanics of the
proceeding itself." Fisher v. Lint, 69 Mass. App. Ct. 360, 367
(2007).
On July 9, 2021, S. Doe moved to amend her complaint to add
claims of libel and slander against defendants Joncas and Murphy
for statements made during an investigation conducted by the
Office for Civil Rights (OCR). The judge denied the motion to
amend on the ground that the defendants' statements were
8 precluded from civil liability by the litigation privilege. See
Gillette Co., 91 Mass. App. Ct. at 140. We agree.
While S. Doe contends that the OCR investigation was
insufficiently judicial because they do not have the procedural
safeguards of a judicial proceeding, the OCR investigations were
in fact in advance of a quasi judicial hearing. 9 See Gillette
Co., 91 Mass. App. Ct. at 140. Had the OCR determined that the
defendants were not in compliance with the OCR regulations, the
defendants would have been entitled to the opportunity for a
hearing. See 34 C.F.R. § 100.8(c)(2) (1980) (order suspending,
terminating, or refusing to grant or continue Federal financial
assistance not effective until after opportunity for hearing).
At such hearing, the parties would have had the procedural
safeguards of a judicial proceeding. Compare 34 C.F.R.
§ 100.9(c)-(d) (2000) (providing right to counsel, opportunity
to present evidence, and opportunity to call witnesses at OCR
hearing), with Fisher, 69 Mass. App. Ct. at 369 (State police
trial board hearings where parties had "the right to counsel,
the right to present evidence, the right to cross-examine
9 S. Doe also claims that the OCR investigations are distinguishable because they are "voluntary." Because S. Doe initially filed the OCR petition, and an adverse OCR determination could subject the defendants to termination of federal financial assistance, it is not clear how cooperation with the OCR investigation was voluntary for the defendants. See 34 C.F.R. § 100.8 (b).
9 adverse witnesses, and the threat of perjury" were quasi
judicial for purposes of litigation privilege). Accordingly,
the defendants' statements were protected by the litigation
privilege, and S. Doe's motion to amend was correctly denied as
futile. See Dzung Duy Nguyen, 479 Mass. at 461.
3. The Rule 37 motion to dismiss claim seven. "While
discovery orders are reviewable on appeal from entry of a final
judgment, we do not interfere with the judge’s exercise of
discretion in the absence of a showing of prejudicial error
resulting from an abuse of discretion." Solimene v. B. Grauel &
Co., K.G., 399 Mass. 790, 799 (1987). If a party fails to obey
an order to provide or permit discovery, the court may dismiss
the action. Mass. R. Civ. P. 37 (b) (2) (C). "Our review of
discovery sanctions . . . is governed by the well-established
abuse of discretion standard." Short v. Marinas USA Ltd.
Partnership, 78 Mass. App. Ct. 848, 852 (2011).
A claim for intentional infliction of emotional distress
requires that a plaintiff show, inter alia, "that the emotional
distress sustained by the plaintiff was severe and of a nature
that no reasonable man could be expected to endure it"
(quotation and citation omitted). Agis v. Howard Johnson Co.,
371 Mass. 140, 145 (1976).
On March 16, 2021, the defendants' motion to compel
discovery as to "any medical records possessed by the plaintiff
10 in support of her claim for emotional distress . . . including
any provider seen for those reasons from 2014 forward, with
ongoing supplementation obligations through date of trial" was
allowed. Until that point, S. Doe's sole evidence that she had
suffered emotional distress appears to be premised on an
affidavit she submitted in opposition to the appointment of a
guardian ad litem for A. Doe, in which she stated, "I have and I
continue to suffer from nausea, chest tightening, upset stomach,
frustration and humiliation and other horrible things as a
result of the School officials action." Following the discovery
order, the full extent of S. Doe's compliance appears to consist
of a statement that she would not say whether she intended to
call a mental health provider as a witness, a privilege log with
four entries addressing meetings with a medical provider, and a
largely redacted May 7, 2021 record of an apparent medical
appointment for "anxiety disorder, unspecified." Over one and
one-half years after the motion to compel was allowed, the
defendants' motion to dismiss pursuant to Mass. R. Civ. P.
37 (b) (2) (C) for failure to comply with the discovery order
was allowed.
S. Doe argues that it was error to dismiss her seventh
claim pursuant to Mass. R. Civ. P. 37 because she had adequately
complied with the motion to compel and that she should not be
compelled to produce records subject to the psychotherapist-
11 patient privilege. See G. L. c. 233, § 20B ("a patient shall
have the privilege of refusing to disclose, and of preventing a
witness from disclosing, any communication, wherever made,
between said patient and a psychotherapist relative to the
diagnosis or treatment of the patient's mental or emotional
condition"). However, S. Doe's argument mischaracterizes the
judge's order. The judge did not require S. Doe to waive the
psychotherapist-patient privilege in order to comply with the
order. It was S. Doe who misinterpreted the psychotherapist-
patient privilege so broadly that it encompassed almost any
evidence that could have satisfied the motion to compel. See
Matter of M.S., 99 Mass. App. Ct. 247, 254 (2021)
(psychotherapist-patient privilege "generally does not prevent a
treating psychiatrist from passing along his diagnosis of a
patient so long as that diagnosis does not reveal
communications").
At bottom, it was S. Doe's obligation as plaintiff to
provide some grounds to conclude that she had sustained
emotional distress that was sufficiently severe and of a nature
that no reasonable person could be expected to endure it. See
Agis, 371 Mass. at 145; Iannacchino, 451 Mass. at 636. With
only minimal evidence of her emotional distress and no evidence
that her emotional distress rose to the level of severity that
could support an IIED claim, S. Doe's claim appeared destined to
12 fail by way of dismissal or summary judgment. See Polay v.
McMahon, 468 Mass. 379, 388 (2014) (bare assertion of severe
emotional distress insufficient to survive motion to dismiss);
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). It
was, therefore, not an abuse of discretion for the court to
allow a motion to compel discovery of any evidence that would
properly support S. Doe's claim and allow it to survive a motion
for summary judgment. See Solimene, 399 Mass. at 799. Nor was
it an abuse of discretion for the court to allow the motion to
13 dismiss after S. Doe failed to comply with the court sanctioned
motion to compel. 10 See Short, 78 Mass. App. Ct. at 852.
Judgment affirmed.
Appeal from order entered July 20, 2023, denying motion to void order and judgment and for declaratory relief dismissed.
By the Court (Desmond, D'Angelo & Smyth, JJ. 11),
Clerk
Entered: March 30, 2026.
10S. Doe also challenges the denial of her motion for a protective order. That motion reiterated the same argument S. Doe made in her opposition to the motion to compel that any medical records would be subject to psychotherapist-patient privilege. The judge correctly treated the motion for a protective order as a motion for reconsideration and denied the motion because it failed to present new facts or legal bases to reconsider the court's ruling. See Rule 9D of the Rules of the Superior Court (2017) ("A Motion for Reconsideration shall otherwise raise no new grounds for relief not raised in the original motion or opposition and shall not reiterate previously advanced arguments"); Commonwealth v. Preston, 393 Mass. 318, 322-323 (1984) ("We have long held that pleadings are to be treated according to their nature and substance rather than their technical form" [quotation and citation omitted]).
11 The panelists are listed in order of seniority.