Preview
Date Filed 6/21/2024 1:19 PM
Superior Court - Middlesex
Docket Number 2481C 00888.
Ly
21
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 2481CV00888
WALTER MCGRAIL, as PRESIDENT OF THE
BOARD OF TRUSTEES OF THE
COLLEGIATE CHARTER SCHOOL OF LOWELL RECEIVED
Plaintiffs,
6/21/2024
Vv.
DEPARTMENT OF CHILDREN AND FAMILIES and
MARY CULOSI,
COMPLAINT FOR CONTEMPT
NOW comes the Plaintiff, Walter McGrail, in his representative capacity on behalf of and
as President of the Board of Trustees (the “Board”) of the Collegiate Charter School of
Lowell (“CCSL” or the “School”), in accordance with the provision of Rule 65.3
Mass.R.Civ.P. and the Memorandum of Decision and Order on Plaintiff’s Motion for
Preliminary Junction dated May 15, 2024 and seeks and order of Civil Contempt due to
violations of the preliminary injunction by the Department of Children and Families
(“DCF”) and Mary Culosi. DCF and Ms. Culosi continue to undermine and interfere with
the day-to-day operations of CCSL and the good order of the school.
I Introduction
1 “The plaintiff, Walter McGrail, in his capacity as President of the Board of Trustees
of the Collegiate Charter School of Lowell ("CCSL"), filed this action seeking
declaratory relief against the Department of Children and Families ("DCF") and its
employee, Mary Culosi ("Culosi"). The facts that bring the parties before this Court
are unfortunate, as it involves CCSL' s need and ability to physically restrain students
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Docket Number 2481C 00888.
in accordance with its restraint policy. As such, this case presents the unique need for
court intervention to address the intersection between CCSL's mission of running its
day-to-day operations while providing for the safety and well-being of its faculty,
staff, and students and DCF's need to fulfill its mission of investigating claims of
neglect and abuse of children.” See Memorandum of Decision and Order on
Plaintiffs Motion for Preliminary Injunction dated May 15, 2024. Exhibit 1, infra.
On April 18, 2024, the Court heard extensive oral argument on the Plaintiff's Motion
for Preliminary Injunction.
After hearing, on May 15, 2024, the Honorable Kathleen E. Campbell issued an
order allowing the Plaintiff's Motion for Preliminary Injunction in the Court’s
Memorandum of Decision and Order. A true and accurate copy of said
Memorandum of Decision is attached hereto as Exhibit 1.
Pursuant to the Order, the Court ordered:
For the foregoing reasons, it is hereby ORDERED that CCSL's motion for
a preliminary injunction is ALLOWED in part and DENIED in part. It is
ORDERED that DCF and its employees are enjoined and restrained from
interfering with CCSL's day-to-day operations and the ability of its
administration, faculty, staff, and other personnel to perform restraints on
students in accordance with the applicable law and regulations. However,
DCF is authorized to investigate any 51A report that relates to the use of
physical restraints by CCSL restraint-trained staff that results in the
alleged abuse or neglect of a child.
Id.
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Docket Number 2481C 00888.
5. In addition to the foregoing, the Court also made specific findings in its
Memorandum of Decision:
(a) “CCSL requests an order enjoining and restraining DCF and Culosi from
interfering with CCSL's day-to-day operations and the ability of its
faculty, staff, and other personnel to perform restraints on students in
accordance with CCSL's restraint policy and the provisions of 603 Code
Mass. Regs.§§ 46.00”;
(b) “Following another incident in which Student A was suspended, CCSL
held a virtual suspension hearing on March 27, 2024, which Culosi
attended with Student A's parents' consent. During the meeting, Culosi
292,
was disruptive and implied that CCSL was not following the law;
(c) “Culosi then continued to speak over and interrupt staff. Despite Culosi's
interruptions, Nystrom attempted to redirect the conversation back to the
hearing agenda but with little success. Culosi then accused Nystrom of
29.3
denying Student A's education rights 3
(d) “Here, CCSL has provided sufficient evidence demonstrating that Culosi
has undermined and interfered with the Restraint Policy by either directly
threatening or implying to staff members who use physical restraints that
they will be subject to a 51A report for suspected child abuse or neglect.
As a result of Culosi's interference, twelve out of fifteen of CCSL's
! See Memorandum of Decision and Order at p. 1-2.
2 Id. at p. 4.
31d.
at p.4
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Docket Number 2481C 00888.
restraint-trained staff refuse to use restraints out of fear that they will be
subject to a DCF investigation’ a. 3 4
(e) “Therefore, Culosi has blurred the lines between her responsibility to
fulfill DCF's mission and responsibilities and the CCSL's rights and
295
responsibilities to autonomy to oversee its day-to-day operations;
@ “Rather, the gravamen of CCSL's complaint is that Culosi’s actions have
had a chilling effect on the Restraint Policy and has interfered with
CCSL's day-to-day operations. Therefore, contrary to the defendants'
assertions, this matter is appropriate for judicial intervention because the
complained of harm is not only likely to reoccur but, in fact, continues to
occur given the restraint-trained staffs refusal to do restraints, and their
refusal places CCSL's faculty, staff, and students in danger of physical
226
harm’
6. The Court’s order gave a clear and unequivocal command to DCF and Ms.
Culosi.
The Court’s order was not ambiguous.
Since the March 6, 2024 incident at CCSL that gave rise to this litigation,
DCF and in particular, Ms. Culosi have been determined to interfere with
CCSL and its ability to carry out its day-to-day operations including, but not
limited to the use of restraints pursuant to 603 CMR 46.00.
‘Id.
at p.6
5 Id. at p. 6.
6 Id. at p. 7.
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Docket Number 2481C 00888.
9. CCSL provided and the Court agreed that there was sufficient and ample
evidence of Ms. Culosi’s undermining and interference with CCSL that CCSL
was likely to prevail on the merits.
10. The provisions of the May 15, 2024 order were adequate to put DCF and Ms.
Culosi on notice of the obligations imposed upon them by the Order.
11.Since the Court’s order allowing the Plaintiff's Motion for Preliminary
Injunction, the Plaintiff served Requests for Admissions on DCF and Ms.
Culosi.
12.On or about May 31, 2024, Plaintiffs counsel received a request for an
extension from the Attorney General to both answer the complaint and to
provide responses to the Plaintiff's Request for Admissions.
13. DCF and Ms. Culosi filed an Assented to Motion for Enlargement of Time
which the Court allowed. The Defendant’s answer and Responses to the
Plaintiff's Requests for Admissions were due June 12, 2024 and the
Defendants provided said responses.
14. The time subsumed by the extension granted by the Plaintiff to answer the
complaint and to respond to Requests for Admissions is the precise time that
the allegations giving rise to the Complaint for Contempt arose.
15. Ms. Culosi is central to the case and played a crucial role in responding to the
Plaintiff's Requests for Admissions which she likely found unpleasant given
the Court’s Preliminary Injunction order that painted her actions and conduct
in a negative light.
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I. DCF and Culosi Violated The Preliminary Injunction
16. On Monday, June 10, 2024, CCSL received an anonymous letter on DCF letterhead. A
true and accurate copy of the letter and envelope are attached hereto collectively as
Exhibit 2.
17 The letter states:
To Whom It May Concern:
I write this to inform you that my coworker Mary Culosi is asking people to file child
abuse reports against your school. She is asking coworkers and friends to do this in
retaliation of what you are doing to her.
Please be aware of this.
See Exhibit 2.
18 This letter represents clear and convincing evidence of violation of this Court’s order on
the Plaintiff's Motion for Preliminary Injunction.
19. The letter was received at approximately 1:00 p.m.
20 The letter contained no post mark nor cancellation of the regular First-Class Mail stamp,
which triggered an immediate response and investigation by CCSL personnel.
21 Upon receipt of the letter, CCSL employees undertook immediate efforts to identify how
the letter arrived at the school.
22. The letter was mailed through the U.S. Postal Service and delivered by the letter carrier
in the ordinary course of business. See Affidavit of Anthony Muchine (“Muchine
Affidavit”) attached hereto as Exhibit 3.
23. The entrance to the school is secure and has video surveillance footage.
24. On Monday, June 10, 2024, Plaintiffs counsel called the Attorney General’s Office
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Docket Number 2481C 00888.
(“AGO”) and spoke with Assistant Attorney General Arjun Jaikumar, who is counsel of
record for DCF and Ms. Culosi. Plaintiff's counsel discussed these developments with
AAG Jaikumar and sent him a copy of the subject letter and envelope. See Affidavit of
Peter S. Farrell (“Farrell Affidavit”) attached hereto as Exhibit 4.
25 On Monday, June 10, 2024 and Tuesday, June 11, 2024, Carl Nystrom reviewed the
subject video footage and determined that the letter was not hand delivered to CCSL and
it was not dropped off. See Affidavit of Carl Nystrom (“Nystrom Affidavit”) attached
hereto as Exhibit 5.
26 On Tuesday, June 11, 2024, counsel for the Plaintiff contacted Michael DaSilva,
Postmaster for the United States Postal Service for the City of Lowell, with a usual place
of business located at 155 Father Morrisette Boulevard, Lowell, MA 01854. See Farrell
Affidavit attached hereto as Exhibit 4.
27. During that conversation, Mr. DaSilva requested that the Plaintiff examine and review the
back of the envelope for any markings that may indicate the letter was processed by the
USS. Postal Service. Id.
28. On Tuesday, June 11, 2024, AAG Jaikumar responded to Plaintiffs counsel and stated:
Thank you for sending this, and for reviewing the security camera footage.
I hope that your review is going well. DCF is taking this matter with the
utmost seriousness and is investigating the source of this letter as well.
We have reviewed the letter carefully, and we have noted several
inconsistencies with the actual DCF letterhead. Together with the fact that
the alleged letter is not postmarked, does not have a return address, and is
not signed, we have serious concerns regarding the letter’s authenticity.
Thank you for alerting me that you are considering filing a complaint for
contempt. Now that I have seen the letter, it appears to me that such a
complaint would be unfounded, particularly without any information
about who actually created and delivered the letter. If your investigation
does yield any information to suggest that it originated with an employee
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of my client, I would appreciate it if you could share that with me.
If you and your client do proceed with filing a complaint for contempt, I
expect that we will oppose and seek all necessary relief. 1 would remind
you that DCF has in fact not filed or investigated any reports of abuse or
neglect regarding CCSL since those concerning the March 6, 2024
incident, nor has either DCF or Ms. Culosi returned to the school since
that investigation concluded. Therefore, I do not see a legal basis for such
an action.
See Farrell Affidavit and Exhibit A attached thereto.
29.On Wednesday, June 12, 2024, Mr. DaSilva wrote to counsel for the Plaintiff and
confirmed that he had reviewed the back of the envelope containing the letter. Id.
30 Mr. DaSilva stated, “My Supervisor just received an email with the letter, it does look like it
went through the Post Office. There is a faint barcode that we splash on the back of the
envelope.” See Farrell Affidavit and Exhibit B annexed thereto.
31 In further support hereof, CCSL relies upon the Affidavit of the Postmaster, Michael
DaSilva (“DaSilva Affidavit”) attached hereto as Exhibit 6.
32 Based on these facts, CCSL has no reason to believe the letter did not originate from a
DCF employee using DCF letterhead.
33 Despite the Defendant’s claims to the contrary, DCF does not have a standardized,
consistent letterhead.
34, Various iterations of DCF letterhead are manipulated and edited all the time, for example,
by location of the subject office, and the digital DCF letterhead template is widely
available to its employees.
35 The Defendants place much stock in the Plaintiff's inability to prove who wrote the
anonymous letter. By asserting a complaint for contempt would be “unfounded” and
that there is “no legal basis for such action,” once again, DCF and Ms. Culosi attempt to
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Docket Number 2481C 00888.
deflect and defer form the central issue in this Complaint for Contempt.”
36. The fact remains that someone thought Ms. Culosi’s conduct was egregious enough to
write a letter to CCSL to inform them of such conduct that is violative of this Court’s
order.
37. The author of the letter is a whistleblower and is afforded protection by law.
38. The Plaintiff is not obligated to show who wrote the letter. The fact it exists is sufficient
for a Complaint for Contempt and for the Court to order discovery on the Complaint.
39. CCSL has investigated and is able to prove the letter was delivered by the U.S. Postal
Service.
40. The statements set forth in Exhibit 2 allegedly attributed to Ms. Culosi are consistent with
the allegations of CCSL’s complaint regarding the tenor of her demeanor, conduct,
behavior, and attitude, her language and legal position, especially those allegations in the
motion for preliminary injunction where Ms. Culosi is alleged to have stated to staff, “I
am going to 51A anybody and everybody.”
WHEREFORE, CCSL requests the following relief on its Complaint for Contempt:
a) That the Court issue a summons on contempt forthwith;
b) That the Court enter an order allowing and permitting discovery relative to the issues set
forth in this Complaint for Contempt, with proposed discovery attached hereto, including
but not limited to, the genesis of the letter CCSL received including electronically stored
information and data; the identity and depositions of DCF employees in the Greater
Lowell Area office and “coworkers” identified in the letter attached as Exhibit 2
regarding the statements made in the letter CCSL received and any other scope of
7 See Exhibit A to Farrell Affidavit.
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Docket Number 2481C 00888.
discovery that may be relevant and reasonably calculated to lead to the discovery of
admissible evidence on this Complaint for Contempt;
°) That the Court issue an order included in the summons providing for an expedited
discovery schedule in accordance with the attached discovery;
d) That the Court set this matter down for an evidentiary hearing and/or trial upon the
completion of discovery;
e) That the Court find DCF and Ms. Culosi in contempt of the Court order enjoining DCF
and Ms. Culosi from interfering with the day-to-day operations of CCSL, including but
not limited to CCSL’s ability to maintain the good order of the school, including the use
of restraints, when necessary, in accordance with 603 CMR 46.00;
That the Court find clear and convincing evidence of DCF and Ms. Culosi’s violation of
the Court’s order that was a clear command and unequivocal in its language such that
DCF and Culosi were both on notice of their obligations pursuant to said order;
g) That the Court enter an order further restraining any employee of the Greater Lowell
Area Office from filing a 51A complaint without the supervision, oversight and approval
of DCF’s Executive Office in Boston, Massachusetts until further notice of this Court;
h) That the Court enter an order assessing a civil penalty in an amount consistent and
appropriate to serve as a coercive penalty under the circumstances;
i) That the Court award CCSL its reasonable attorney’s fees incurred in bringing the action
itself and seeking a Complaint for Contempt.
10
Date Filed 6/21/2024 1:19 PM
Superior Court - Middlesex
Docket Number 2481C 00888.
WALTER MCGRAIL, in his capacity as
PRESIDENT OF THE BOARD OF TRUSTEES
OF THE COLLEGIATE CHARTER
SCHOOL OF LOWELL
By orneys.
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Peter S. Farreif ( O No.: 656712)
Jacob E. LavinfBBO No.: 658914)
46 Railroad enue, Suite
Date: June 19, 2024 Duxbury, 02332
(781) 236-3620
fa rrell@farrelllavin.com
jlavin@farrelllavin.com
11
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Docket Number 2481C 00888.
EXHIBIT 1
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Docket Number 2481C 00888.
\+
—_—_——
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 2481CV00888
WALTER MCGRAIL!
ys.
DEPARTMENT OF CHILDREN AND FAMILIES & another”
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFE’S
MOTION FOR PRELIMINAR (JUNCTION
The plaintiff, Walter McGrail, in his capacity as President of the Board of Trustees of the
Collegiate Charter School of Lowell (*CCSL”), filed this action seeking declaratory relief
against the Department of Children and Families (“DCF”) and its employee, Mary Culosi
(“Culosi”). The facts that bring the parties before this Court are unfortunate, as it involves
CCSL’s need and ability to physically restrain students in accordance with its restraint policy.
As such, this case presents the unique need for court intervention to address the intersection
between CCSL’s mission of running its day-to-day operations while providing for the safety and
well-being of its faculty, staff, and students and DCF’s need to fulfill its mission of investigating
claims of neglect and abuse of children.
The matter is presently before the court on CCSL’s motion for preliminary injunction
against DCF and Culosi. After hearing and careful review of the parties’ submissions, the
motion for preliminary injunction is ALLOWED insofar as CCSL requests an order enjoining
and restraining DCF and Culosi from interfering with CCSL’s day-to-day operations and the
' As President of the Board of Trustees of the Collegiate Charter School of Lowell.
? Mary Culosi.
a
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ability of its faculty, staff, and other personnel to perform restraints on students in accordance
with CCSL’s restraint policy and the provisions of 603 Code Mass. Regs. §§ 46.00. CCSL’s
motion, however, is DENIED insofar as it seeks an order enjoining and restraining DCF and
Culosi from filing a 51A report relative to any CCSL faculty, staff, or other personnel, because
such an order interferes with DCF’s statutory and regulatory authority to investigate claims of
abuse or neglect of children.
BACKGROUND
The record before the court, consisting of the verified complaint, exhibits, and affidavits
submitted by both sides, provides the following factual background. The court reserves
additional facts for discussion, below.
A, CCSL and its Restraint Policy
CCSL is a tuition-free, public charter school in Lowell, Massachusetts, that serves
students in Kindergarten through Grade 12. CCSL provides an academically challenging
program in a safe and structured environment. It is governed by G. L. c. 71, § 89.
CCSL is overseen by the Massachusetts Department of Elementary and Secondary
Education (“DESE”). The school’s day-to-day operations and implementation of policies are
charged to the Leadership Team, which consists of the Executive Director, the principal, and
assistant principals that oversee various grade levels.
CCSL has adopted, used, maintained, and implemented a Restraint Prevention and
Behavior Support Policy and Procedure (the “Restraint Policy”), which is carried out by trained
personnel who receive specific training during professional development. CCSL has fifteen
restraint-trained personnel for a student body of approximately 1,200 students. Many
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educational institutions in the Commonwealth have adopted restraint policies, and the
Legislature and the DESE explicitly have approved the use of restraint policies in public schools.
See G. L. c. 71, § 37G; 603 Code Mass. Regs. §§ 46.00. However, physical restraint “shall be
limited to the use of such reasonable force as is necessary to protect a student or another member
of the school community from assault or imminent, serious, physical harm,” see 603 Code Mass.
Regs. § 46.03, and “[p]hysical restraint shall be used only in emergency situations of last resort,
after other lawful and less intrusive alternatives have failed or been deemed inappropriate, and
with extreme caution.” 603 Code Mass. Regs. § 46.01. Pursuant to 603 Code Mass. Regs.
§ 46.04, public education programs are required to develop and implement written restraint
policies consistent with 603 Code Mass. Regs. §§ 46.00, and such policies must be annually
reviewed and provided to program staff and made available to parents of enrolled students.
B. March 6, 2024 Incident
On about March 9, 2024, DCF received a 51A report from a mandated reporter, alleging
physical abuse of a six-year-old student (“Student A”) by a senior staff member of CCSL.?
Student A has an active Individualized Education Program (“IEP”), Behavior Support Plan, and
Safety Plan. Student A qualifies for special education services due to developmental delay.
The mandated reporter alleged that, on March 6, 2024, a senior staff member utilized a
non-Crisis Prevention Institute (“CPI”) approved restraint, which involved staff members
holding blue mats up to Student A to corral him against a wall. The senior staff member then
allegedly put the child down to the ground and held him under the mat as the child was crying.
3 Pursuant to G. Lc. 119, § 51A, certain professionals are required by law to file a written report with DCF if they
have reasonable cause to believe that a child is suffering a physical or emotional injury resulting from abuse or
neglect.
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The mandated reporter allegedly confronted the senior staff member about the restraint not being
CPI approved and expressed concern about a padded room that was being built to be utilized
with students. DCF assigned Culosi to investigate the 51A report.‘
CCSL alleges that, during Culosi’s investigation, she interfered with the Restraint Policy
by informing staff that they could not put hands on students and if they did, they would be
subject to a 51A report. Asa result of Culosi’s statements, most of CCSL’s restraint-trained staff
is refusing to follow the Restraint Policy, which has caused a substantial disruption to the
school’s day-to-day operations. CCSL has cited to multiple instances, in which its staff have
either overtly refused to engage in physical restraints or ignored immediate calls for support for
those who are trained in restraints.
Following another incident in which Student A was suspended, CCSL held a virtual
suspension hearing on March 27, 2024, which Culosi attended with Student A’s parents’ consent.
During the meeting, Culosi was disruptive and implied that CCSL was not following the law. At
one point, Culosi made a statement to Student A’s parents about the use of restraints, to which
Student A’s father began questioning the March 6 incident. Carl Nystrom (“Nystrom”), the
Director of Finance at CCSL, informed the parents that there would be a subsequent IEP meeting
to address those questions. Culosi then continued to speak over and interrupt staff. Despite
Culosi’s interruptions, Nystrom attempted to redirect the conversation back to the hearing
agenda but with little success. Culosi then accused Nystrom of denying Student A’s education
rights. Ultimately, Nystrom read the suspension determination summary and adjourned the
4 Upon receipt of a 51A report, DCF must immediately screen the report to determine whether the allegations meet
certain statutory and regulatory requirements. See 110 Code Mass. Regs. § 4.21. Ifa 51A report does not meets the
necessary requirements, the report is “screened out.” If the report satisfies the requirements, it is “screened in,” and
DCF investigates the allegation and makes a written determination whether the allegation is supported or
unsupported (51B investigation). See G. L. c. 119, § 51B; 110 Code Mass. Regs. § 4.21.
—_ 44
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meeting. Culosi then demanded to be included in the IEP meeting and asked Student A’s father
if DCF could participate in that meeting. Overall, despite Culosi’s role as an investigator of
abuse or neglect of children, during the suspension hearing, she took on an advocate role on
behalf of Student A’s parents.
DISCUSSION
I Standard of Review
Under the well-known standard for granting a preliminary injunction, the moving party
must show that it is likely to succeed on the merits and that in the absence of an injunction it will
suffer irreparable harm sufficient to outweigh the harm that an erroneous injunction would
impose on the nonmoving party. GTE Prods. Corp. v. Stewart, 414 Mass. 721, 722-723 (1993);
Packaging Indus. Grp., Inc. v. Cheney, 380 Mass. 609, 617 (1980). Where, as here, CCSL is
seeking to constrain government action, it also must show that the requested order promotes the
public interest, or alternatively, that the equitable relief will not adversely affect the public.
Abner A. v. Massachusetts Interscholastic Athletic Ass’n, 490 Mass. 538, 545 (2022). A
preliminary injunction is a significant remedy that should not be granted unless the moving party
has made a clear showing of entitlement thereto. Student No. 9 v. Board of Educ., 440
Mass.752, 762 (2004). In balancing these factors, the court considers not so much “the raw
amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm
in light of the party’s chance of success on the merits. Only where the balance between these
risks cuts in favor of the moving party may a preliminary injunction properly issue.” Packaging
Indus. Grp.. Inc., 380 Mass. at 617.
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I. Analysis
CCSL seeks a preliminary injunction to enjoin DCF and Culosi (collectively,
“defendants”) from interfering with and threatening its staff for utilizing the Restraint Policy
when necessary. CCSL also seeks to enjoin the defendants from filing 51A reports arising out of
its staff and personnel from utilizing the Restraint Policy. For the following brief reasons, the
court finds that CCSL has satisfied its burden with respect to the former but not the latter.
As explained above, CCSL has statutory and regulatory authority to implement a restraint
policy, see G. L. c. 71, § 37G; 603 Code Mass. Regs. §§ 46.00, and the defendants have not cited
to any legal authority, nor is the court aware of any, that allows DCF to dictate or interfere with
CCSL’s policies unless the implementation of such policy results in the abuse or neglect ofa
child, to which DCF is expressly authorized to investigate. Therefore, any attempts by the
defendants ordering or threatening CCSL staff or personnel so that they do not comply with the
Restraint Policy is unlawful.
Here, CCSL has provided sufficient evidence demonstrating that Culosi has undermined
and interfered with the Restraint Policy by either directly threatening or implying to staff
members who use physical restraints that they will be subject to a 51A report for suspected child
abuse or neglect. As a result of Culosi’s interference, twelve out of fifteen of CCSL’s restraint-
trained staff refuse to use restraints out of fear that they will be subject to a DCF investigation.
However, CCSL has shown that the staff’s failure to follow the Restraint Policy places the safety
and welfare of CCSL’s students, faculty, and staff at risk of physical harm. Therefore, Culosi
has blurred the lines between her responsibility to fulfill DCF’s mission and responsibilities and
the CCSL’s rights and responsibilities to autonomy to oversee its day-to-day operations.
ee
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The defendants, nevertheless, argue that, because they agree that CCSL has the authority
to use its Restraint Policy, and because they have issued a 51B report against the senior staff
member involved in the March 6 incident, there is no case and controversy for this Court to
review, and this Court does not have subject matter jurisdiction to act. This argument, however,
overlooks the fact that CCSL is not contesting the investigation and outcome of the 51A and 51B
reports relative to the March 6 incident. Rather, the gravamen of CCSL’s complaint is that
Culosi’s actions have had a chilling effect on the Restraint Policy and has interfered with
CCSL’s day-to-day operations. Therefore, contrary to the defendants’ assertions, this matter is
appropriate for judicial intervention because the complained of harm is not only likely to reoccur
but, in fact, continues to occur given the restraint-trained staff’s refusal to do restraints, and their
refusal places CCSL’s faculty, staff, and students in danger of physical harm. Just as DCF has
the unfettered right, through its employees, to act within its mandate in investigating cases of
abuse and neglect of children in the Commonwealth, CCSL has the right to oversee its day-to-
day operations by providing an educational environment that is safe for its students, faculty, and
staff, which includes the use of physical restraints. Accordingly, for these reasons, CCSL has
demonstrated a likelihood of success on the merits of their claims and that there is a substantial
risk of irreparable harm in the absence of the injunction. The requested relief also promotes the
public interest as it ensures the safety of the public-school students, faculty, and staff and ensures
that CCSL can use the Restraint Policy as intended and approved by DESE regulations.
To be clear, however, this decision does not in any way inhibit or restrict DCF’s rights to
investigate 51A reports filed against any staff member at CCSL for failing to conduct proper
restraints in accordance with the Restraint Policy and DESE regulations. Rather, this decision
does prohibit DCF and any DCF employee, including to Culosi, from telling CCSL faculty and
a
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staff members that “any hands on a child” will lead to the filing of a51A report. This decision
also prohibits DCF from interfering in any way with CCSL’s implementation and execution of
the Restraint Policy so long as the use and implementation by trained staff complies with the
applicable law and regulations.
ORDER
For the foregoing reasons, it is hereby ORDERED that CCSL’s motion for a preliminary
injunction is ALLOWED in part and DENIED in part. It is ORDERED that DCF and its
employees are enjoined and restrained from interfering with CCSL’s day-to-day operations and
the ability of its administration, faculty, staff, and other personnel to perform restraints on
students in accordance with the applicable law and regulations. However, DCF is authorized to
investigate any 51A report that relates to the use of physical restraints by CCSL restraint-trained
staff that results in the alleged abuse or neglect of a child.
SO ORDERED.
May 15, 2024
en E. Campbell
Associate Justice of the Sup. Ct.
Date Filed 6/21/2024 1:19 PM
Superior Court - Middlesex
Docket Number 2481C 00888.
EXHIBIT 2
Date Filed 6/21/2024 1:19 PM
Superior Court - Middlesex
Docket Number 2481C 00888.
EXECUTIVE OFFICE OF HEALTH AND HUMAN
SERVICES
COMMONWEALTH OFMASSACHUSETTS
By) DEPARTMENT OF CHILDREN & FAMILIES
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MAURA T. HEALEY Lowell Area Office KATHLEEN E. WALSH
GOVERNOR SECRETARY
2 Omni Way, Chelmsford, MA 01824
KIMBERLEY DRISCOLL Tel. (978) 275-6800 + F (978) 452-5896
STAVERNEY. MILLER
LIEUTENANT GOVERNOR www.mass.qov/det ACTING COMMISSIONER
Collegiate Charter School of Lowell
1857 Middlesex Street
Lowell, Massachusetts 01851
To Whom It May Concern
| write this to inform you that my coworker Mary Culosi is asking people to file child abuse reports
against your school. She is asking coworkers and friends to do this in retaliation of what you are
doing to her.
Please be aware of this.
Date Filed 6/21/2024 1:19 PM
Superior Court - Middlesex
Docket Number 2481C 00888.
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Date Filed 6/21/2024 1:19 PM
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Docket Number 2481C 00888.
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Date Filed 6/21/2024 1:19 PM
Superior Court - Middlesex
Docket Number 2481C 00888.
EXHIBIT 3
Date Filed 6/21/2024 1:19 PM
Superior Court - Middlesex
Docket Number 2481C 00888.
Preview
Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. Ly 21 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 2481CV00888 WALTER MCGRAIL, as PRESIDENT OF THE BOARD OF TRUSTEES OF THE COLLEGIATE CHARTER SCHOOL OF LOWELL RECEIVED Plaintiffs, 6/21/2024 Vv. DEPARTMENT OF CHILDREN AND FAMILIES and MARY CULOSI, COMPLAINT FOR CONTEMPT NOW comes the Plaintiff, Walter McGrail, in his representative capacity on behalf of and as President of the Board of Trustees (the “Board”) of the Collegiate Charter School of Lowell (“CCSL” or the “School”), in accordance with the provision of Rule 65.3 Mass.R.Civ.P. and the Memorandum of Decision and Order on Plaintiff’s Motion for Preliminary Junction dated May 15, 2024 and seeks and order of Civil Contempt due to violations of the preliminary injunction by the Department of Children and Families (“DCF”) and Mary Culosi. DCF and Ms. Culosi continue to undermine and interfere with the day-to-day operations of CCSL and the good order of the school. I Introduction 1 “The plaintiff, Walter McGrail, in his capacity as President of the Board of Trustees of the Collegiate Charter School of Lowell ("CCSL"), filed this action seeking declaratory relief against the Department of Children and Families ("DCF") and its employee, Mary Culosi ("Culosi"). The facts that bring the parties before this Court are unfortunate, as it involves CCSL' s need and ability to physically restrain students Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. in accordance with its restraint policy. As such, this case presents the unique need for court intervention to address the intersection between CCSL's mission of running its day-to-day operations while providing for the safety and well-being of its faculty, staff, and students and DCF's need to fulfill its mission of investigating claims of neglect and abuse of children.” See Memorandum of Decision and Order on Plaintiffs Motion for Preliminary Injunction dated May 15, 2024. Exhibit 1, infra. On April 18, 2024, the Court heard extensive oral argument on the Plaintiff's Motion for Preliminary Injunction. After hearing, on May 15, 2024, the Honorable Kathleen E. Campbell issued an order allowing the Plaintiff's Motion for Preliminary Injunction in the Court’s Memorandum of Decision and Order. A true and accurate copy of said Memorandum of Decision is attached hereto as Exhibit 1. Pursuant to the Order, the Court ordered: For the foregoing reasons, it is hereby ORDERED that CCSL's motion for a preliminary injunction is ALLOWED in part and DENIED in part. It is ORDERED that DCF and its employees are enjoined and restrained from interfering with CCSL's day-to-day operations and the ability of its administration, faculty, staff, and other personnel to perform restraints on students in accordance with the applicable law and regulations. However, DCF is authorized to investigate any 51A report that relates to the use of physical restraints by CCSL restraint-trained staff that results in the alleged abuse or neglect of a child. Id. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. 5. In addition to the foregoing, the Court also made specific findings in its Memorandum of Decision: (a) “CCSL requests an order enjoining and restraining DCF and Culosi from interfering with CCSL's day-to-day operations and the ability of its faculty, staff, and other personnel to perform restraints on students in accordance with CCSL's restraint policy and the provisions of 603 Code Mass. Regs.§§ 46.00”; (b) “Following another incident in which Student A was suspended, CCSL held a virtual suspension hearing on March 27, 2024, which Culosi attended with Student A's parents' consent. During the meeting, Culosi 292, was disruptive and implied that CCSL was not following the law; (c) “Culosi then continued to speak over and interrupt staff. Despite Culosi's interruptions, Nystrom attempted to redirect the conversation back to the hearing agenda but with little success. Culosi then accused Nystrom of 29.3 denying Student A's education rights 3 (d) “Here, CCSL has provided sufficient evidence demonstrating that Culosi has undermined and interfered with the Restraint Policy by either directly threatening or implying to staff members who use physical restraints that they will be subject to a 51A report for suspected child abuse or neglect. As a result of Culosi's interference, twelve out of fifteen of CCSL's ! See Memorandum of Decision and Order at p. 1-2. 2 Id. at p. 4. 31d. at p.4 Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. restraint-trained staff refuse to use restraints out of fear that they will be subject to a DCF investigation’ a. 3 4 (e) “Therefore, Culosi has blurred the lines between her responsibility to fulfill DCF's mission and responsibilities and the CCSL's rights and 295 responsibilities to autonomy to oversee its day-to-day operations; @ “Rather, the gravamen of CCSL's complaint is that Culosi’s actions have had a chilling effect on the Restraint Policy and has interfered with CCSL's day-to-day operations. Therefore, contrary to the defendants' assertions, this matter is appropriate for judicial intervention because the complained of harm is not only likely to reoccur but, in fact, continues to occur given the restraint-trained staffs refusal to do restraints, and their refusal places CCSL's faculty, staff, and students in danger of physical 226 harm’ 6. The Court’s order gave a clear and unequivocal command to DCF and Ms. Culosi. The Court’s order was not ambiguous. Since the March 6, 2024 incident at CCSL that gave rise to this litigation, DCF and in particular, Ms. Culosi have been determined to interfere with CCSL and its ability to carry out its day-to-day operations including, but not limited to the use of restraints pursuant to 603 CMR 46.00. ‘Id. at p.6 5 Id. at p. 6. 6 Id. at p. 7. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. 9. CCSL provided and the Court agreed that there was sufficient and ample evidence of Ms. Culosi’s undermining and interference with CCSL that CCSL was likely to prevail on the merits. 10. The provisions of the May 15, 2024 order were adequate to put DCF and Ms. Culosi on notice of the obligations imposed upon them by the Order. 11.Since the Court’s order allowing the Plaintiff's Motion for Preliminary Injunction, the Plaintiff served Requests for Admissions on DCF and Ms. Culosi. 12.On or about May 31, 2024, Plaintiffs counsel received a request for an extension from the Attorney General to both answer the complaint and to provide responses to the Plaintiff's Request for Admissions. 13. DCF and Ms. Culosi filed an Assented to Motion for Enlargement of Time which the Court allowed. The Defendant’s answer and Responses to the Plaintiff's Requests for Admissions were due June 12, 2024 and the Defendants provided said responses. 14. The time subsumed by the extension granted by the Plaintiff to answer the complaint and to respond to Requests for Admissions is the precise time that the allegations giving rise to the Complaint for Contempt arose. 15. Ms. Culosi is central to the case and played a crucial role in responding to the Plaintiff's Requests for Admissions which she likely found unpleasant given the Court’s Preliminary Injunction order that painted her actions and conduct in a negative light. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. I. DCF and Culosi Violated The Preliminary Injunction 16. On Monday, June 10, 2024, CCSL received an anonymous letter on DCF letterhead. A true and accurate copy of the letter and envelope are attached hereto collectively as Exhibit 2. 17 The letter states: To Whom It May Concern: I write this to inform you that my coworker Mary Culosi is asking people to file child abuse reports against your school. She is asking coworkers and friends to do this in retaliation of what you are doing to her. Please be aware of this. See Exhibit 2. 18 This letter represents clear and convincing evidence of violation of this Court’s order on the Plaintiff's Motion for Preliminary Injunction. 19. The letter was received at approximately 1:00 p.m. 20 The letter contained no post mark nor cancellation of the regular First-Class Mail stamp, which triggered an immediate response and investigation by CCSL personnel. 21 Upon receipt of the letter, CCSL employees undertook immediate efforts to identify how the letter arrived at the school. 22. The letter was mailed through the U.S. Postal Service and delivered by the letter carrier in the ordinary course of business. See Affidavit of Anthony Muchine (“Muchine Affidavit”) attached hereto as Exhibit 3. 23. The entrance to the school is secure and has video surveillance footage. 24. On Monday, June 10, 2024, Plaintiffs counsel called the Attorney General’s Office Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. (“AGO”) and spoke with Assistant Attorney General Arjun Jaikumar, who is counsel of record for DCF and Ms. Culosi. Plaintiff's counsel discussed these developments with AAG Jaikumar and sent him a copy of the subject letter and envelope. See Affidavit of Peter S. Farrell (“Farrell Affidavit”) attached hereto as Exhibit 4. 25 On Monday, June 10, 2024 and Tuesday, June 11, 2024, Carl Nystrom reviewed the subject video footage and determined that the letter was not hand delivered to CCSL and it was not dropped off. See Affidavit of Carl Nystrom (“Nystrom Affidavit”) attached hereto as Exhibit 5. 26 On Tuesday, June 11, 2024, counsel for the Plaintiff contacted Michael DaSilva, Postmaster for the United States Postal Service for the City of Lowell, with a usual place of business located at 155 Father Morrisette Boulevard, Lowell, MA 01854. See Farrell Affidavit attached hereto as Exhibit 4. 27. During that conversation, Mr. DaSilva requested that the Plaintiff examine and review the back of the envelope for any markings that may indicate the letter was processed by the USS. Postal Service. Id. 28. On Tuesday, June 11, 2024, AAG Jaikumar responded to Plaintiffs counsel and stated: Thank you for sending this, and for reviewing the security camera footage. I hope that your review is going well. DCF is taking this matter with the utmost seriousness and is investigating the source of this letter as well. We have reviewed the letter carefully, and we have noted several inconsistencies with the actual DCF letterhead. Together with the fact that the alleged letter is not postmarked, does not have a return address, and is not signed, we have serious concerns regarding the letter’s authenticity. Thank you for alerting me that you are considering filing a complaint for contempt. Now that I have seen the letter, it appears to me that such a complaint would be unfounded, particularly without any information about who actually created and delivered the letter. If your investigation does yield any information to suggest that it originated with an employee Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. of my client, I would appreciate it if you could share that with me. If you and your client do proceed with filing a complaint for contempt, I expect that we will oppose and seek all necessary relief. 1 would remind you that DCF has in fact not filed or investigated any reports of abuse or neglect regarding CCSL since those concerning the March 6, 2024 incident, nor has either DCF or Ms. Culosi returned to the school since that investigation concluded. Therefore, I do not see a legal basis for such an action. See Farrell Affidavit and Exhibit A attached thereto. 29.On Wednesday, June 12, 2024, Mr. DaSilva wrote to counsel for the Plaintiff and confirmed that he had reviewed the back of the envelope containing the letter. Id. 30 Mr. DaSilva stated, “My Supervisor just received an email with the letter, it does look like it went through the Post Office. There is a faint barcode that we splash on the back of the envelope.” See Farrell Affidavit and Exhibit B annexed thereto. 31 In further support hereof, CCSL relies upon the Affidavit of the Postmaster, Michael DaSilva (“DaSilva Affidavit”) attached hereto as Exhibit 6. 32 Based on these facts, CCSL has no reason to believe the letter did not originate from a DCF employee using DCF letterhead. 33 Despite the Defendant’s claims to the contrary, DCF does not have a standardized, consistent letterhead. 34, Various iterations of DCF letterhead are manipulated and edited all the time, for example, by location of the subject office, and the digital DCF letterhead template is widely available to its employees. 35 The Defendants place much stock in the Plaintiff's inability to prove who wrote the anonymous letter. By asserting a complaint for contempt would be “unfounded” and that there is “no legal basis for such action,” once again, DCF and Ms. Culosi attempt to Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. deflect and defer form the central issue in this Complaint for Contempt.” 36. The fact remains that someone thought Ms. Culosi’s conduct was egregious enough to write a letter to CCSL to inform them of such conduct that is violative of this Court’s order. 37. The author of the letter is a whistleblower and is afforded protection by law. 38. The Plaintiff is not obligated to show who wrote the letter. The fact it exists is sufficient for a Complaint for Contempt and for the Court to order discovery on the Complaint. 39. CCSL has investigated and is able to prove the letter was delivered by the U.S. Postal Service. 40. The statements set forth in Exhibit 2 allegedly attributed to Ms. Culosi are consistent with the allegations of CCSL’s complaint regarding the tenor of her demeanor, conduct, behavior, and attitude, her language and legal position, especially those allegations in the motion for preliminary injunction where Ms. Culosi is alleged to have stated to staff, “I am going to 51A anybody and everybody.” WHEREFORE, CCSL requests the following relief on its Complaint for Contempt: a) That the Court issue a summons on contempt forthwith; b) That the Court enter an order allowing and permitting discovery relative to the issues set forth in this Complaint for Contempt, with proposed discovery attached hereto, including but not limited to, the genesis of the letter CCSL received including electronically stored information and data; the identity and depositions of DCF employees in the Greater Lowell Area office and “coworkers” identified in the letter attached as Exhibit 2 regarding the statements made in the letter CCSL received and any other scope of 7 See Exhibit A to Farrell Affidavit. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. discovery that may be relevant and reasonably calculated to lead to the discovery of admissible evidence on this Complaint for Contempt; °) That the Court issue an order included in the summons providing for an expedited discovery schedule in accordance with the attached discovery; d) That the Court set this matter down for an evidentiary hearing and/or trial upon the completion of discovery; e) That the Court find DCF and Ms. Culosi in contempt of the Court order enjoining DCF and Ms. Culosi from interfering with the day-to-day operations of CCSL, including but not limited to CCSL’s ability to maintain the good order of the school, including the use of restraints, when necessary, in accordance with 603 CMR 46.00; That the Court find clear and convincing evidence of DCF and Ms. Culosi’s violation of the Court’s order that was a clear command and unequivocal in its language such that DCF and Culosi were both on notice of their obligations pursuant to said order; g) That the Court enter an order further restraining any employee of the Greater Lowell Area Office from filing a 51A complaint without the supervision, oversight and approval of DCF’s Executive Office in Boston, Massachusetts until further notice of this Court; h) That the Court enter an order assessing a civil penalty in an amount consistent and appropriate to serve as a coercive penalty under the circumstances; i) That the Court award CCSL its reasonable attorney’s fees incurred in bringing the action itself and seeking a Complaint for Contempt. 10 Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. WALTER MCGRAIL, in his capacity as PRESIDENT OF THE BOARD OF TRUSTEES OF THE COLLEGIATE CHARTER SCHOOL OF LOWELL By orneys. Ul Mf pe LLA i) Peter S. Farreif ( O No.: 656712) Jacob E. LavinfBBO No.: 658914) 46 Railroad enue, Suite Date: June 19, 2024 Duxbury, 02332 (781) 236-3620 fa rrell@farrelllavin.com jlavin@farrelllavin.com 11 Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. EXHIBIT 1 Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. \+ —_—_—— COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION NO. 2481CV00888 WALTER MCGRAIL! ys. DEPARTMENT OF CHILDREN AND FAMILIES & another” MEMORANDUM OF DECISION AND ORDER ON PLAINTIFE’S MOTION FOR PRELIMINAR (JUNCTION The plaintiff, Walter McGrail, in his capacity as President of the Board of Trustees of the Collegiate Charter School of Lowell (*CCSL”), filed this action seeking declaratory relief against the Department of Children and Families (“DCF”) and its employee, Mary Culosi (“Culosi”). The facts that bring the parties before this Court are unfortunate, as it involves CCSL’s need and ability to physically restrain students in accordance with its restraint policy. As such, this case presents the unique need for court intervention to address the intersection between CCSL’s mission of running its day-to-day operations while providing for the safety and well-being of its faculty, staff, and students and DCF’s need to fulfill its mission of investigating claims of neglect and abuse of children. The matter is presently before the court on CCSL’s motion for preliminary injunction against DCF and Culosi. After hearing and careful review of the parties’ submissions, the motion for preliminary injunction is ALLOWED insofar as CCSL requests an order enjoining and restraining DCF and Culosi from interfering with CCSL’s day-to-day operations and the ' As President of the Board of Trustees of the Collegiate Charter School of Lowell. ? Mary Culosi. a Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. ability of its faculty, staff, and other personnel to perform restraints on students in accordance with CCSL’s restraint policy and the provisions of 603 Code Mass. Regs. §§ 46.00. CCSL’s motion, however, is DENIED insofar as it seeks an order enjoining and restraining DCF and Culosi from filing a 51A report relative to any CCSL faculty, staff, or other personnel, because such an order interferes with DCF’s statutory and regulatory authority to investigate claims of abuse or neglect of children. BACKGROUND The record before the court, consisting of the verified complaint, exhibits, and affidavits submitted by both sides, provides the following factual background. The court reserves additional facts for discussion, below. A, CCSL and its Restraint Policy CCSL is a tuition-free, public charter school in Lowell, Massachusetts, that serves students in Kindergarten through Grade 12. CCSL provides an academically challenging program in a safe and structured environment. It is governed by G. L. c. 71, § 89. CCSL is overseen by the Massachusetts Department of Elementary and Secondary Education (“DESE”). The school’s day-to-day operations and implementation of policies are charged to the Leadership Team, which consists of the Executive Director, the principal, and assistant principals that oversee various grade levels. CCSL has adopted, used, maintained, and implemented a Restraint Prevention and Behavior Support Policy and Procedure (the “Restraint Policy”), which is carried out by trained personnel who receive specific training during professional development. CCSL has fifteen restraint-trained personnel for a student body of approximately 1,200 students. Many Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. educational institutions in the Commonwealth have adopted restraint policies, and the Legislature and the DESE explicitly have approved the use of restraint policies in public schools. See G. L. c. 71, § 37G; 603 Code Mass. Regs. §§ 46.00. However, physical restraint “shall be limited to the use of such reasonable force as is necessary to protect a student or another member of the school community from assault or imminent, serious, physical harm,” see 603 Code Mass. Regs. § 46.03, and “[p]hysical restraint shall be used only in emergency situations of last resort, after other lawful and less intrusive alternatives have failed or been deemed inappropriate, and with extreme caution.” 603 Code Mass. Regs. § 46.01. Pursuant to 603 Code Mass. Regs. § 46.04, public education programs are required to develop and implement written restraint policies consistent with 603 Code Mass. Regs. §§ 46.00, and such policies must be annually reviewed and provided to program staff and made available to parents of enrolled students. B. March 6, 2024 Incident On about March 9, 2024, DCF received a 51A report from a mandated reporter, alleging physical abuse of a six-year-old student (“Student A”) by a senior staff member of CCSL.? Student A has an active Individualized Education Program (“IEP”), Behavior Support Plan, and Safety Plan. Student A qualifies for special education services due to developmental delay. The mandated reporter alleged that, on March 6, 2024, a senior staff member utilized a non-Crisis Prevention Institute (“CPI”) approved restraint, which involved staff members holding blue mats up to Student A to corral him against a wall. The senior staff member then allegedly put the child down to the ground and held him under the mat as the child was crying. 3 Pursuant to G. Lc. 119, § 51A, certain professionals are required by law to file a written report with DCF if they have reasonable cause to believe that a child is suffering a physical or emotional injury resulting from abuse or neglect. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. The mandated reporter allegedly confronted the senior staff member about the restraint not being CPI approved and expressed concern about a padded room that was being built to be utilized with students. DCF assigned Culosi to investigate the 51A report.‘ CCSL alleges that, during Culosi’s investigation, she interfered with the Restraint Policy by informing staff that they could not put hands on students and if they did, they would be subject to a 51A report. Asa result of Culosi’s statements, most of CCSL’s restraint-trained staff is refusing to follow the Restraint Policy, which has caused a substantial disruption to the school’s day-to-day operations. CCSL has cited to multiple instances, in which its staff have either overtly refused to engage in physical restraints or ignored immediate calls for support for those who are trained in restraints. Following another incident in which Student A was suspended, CCSL held a virtual suspension hearing on March 27, 2024, which Culosi attended with Student A’s parents’ consent. During the meeting, Culosi was disruptive and implied that CCSL was not following the law. At one point, Culosi made a statement to Student A’s parents about the use of restraints, to which Student A’s father began questioning the March 6 incident. Carl Nystrom (“Nystrom”), the Director of Finance at CCSL, informed the parents that there would be a subsequent IEP meeting to address those questions. Culosi then continued to speak over and interrupt staff. Despite Culosi’s interruptions, Nystrom attempted to redirect the conversation back to the hearing agenda but with little success. Culosi then accused Nystrom of denying Student A’s education rights. Ultimately, Nystrom read the suspension determination summary and adjourned the 4 Upon receipt of a 51A report, DCF must immediately screen the report to determine whether the allegations meet certain statutory and regulatory requirements. See 110 Code Mass. Regs. § 4.21. Ifa 51A report does not meets the necessary requirements, the report is “screened out.” If the report satisfies the requirements, it is “screened in,” and DCF investigates the allegation and makes a written determination whether the allegation is supported or unsupported (51B investigation). See G. L. c. 119, § 51B; 110 Code Mass. Regs. § 4.21. —_ 44 Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. meeting. Culosi then demanded to be included in the IEP meeting and asked Student A’s father if DCF could participate in that meeting. Overall, despite Culosi’s role as an investigator of abuse or neglect of children, during the suspension hearing, she took on an advocate role on behalf of Student A’s parents. DISCUSSION I Standard of Review Under the well-known standard for granting a preliminary injunction, the moving party must show that it is likely to succeed on the merits and that in the absence of an injunction it will suffer irreparable harm sufficient to outweigh the harm that an erroneous injunction would impose on the nonmoving party. GTE Prods. Corp. v. Stewart, 414 Mass. 721, 722-723 (1993); Packaging Indus. Grp., Inc. v. Cheney, 380 Mass. 609, 617 (1980). Where, as here, CCSL is seeking to constrain government action, it also must show that the requested order promotes the public interest, or alternatively, that the equitable relief will not adversely affect the public. Abner A. v. Massachusetts Interscholastic Athletic Ass’n, 490 Mass. 538, 545 (2022). A preliminary injunction is a significant remedy that should not be granted unless the moving party has made a clear showing of entitlement thereto. Student No. 9 v. Board of Educ., 440 Mass.752, 762 (2004). In balancing these factors, the court considers not so much “the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Packaging Indus. Grp.. Inc., 380 Mass. at 617. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. I. Analysis CCSL seeks a preliminary injunction to enjoin DCF and Culosi (collectively, “defendants”) from interfering with and threatening its staff for utilizing the Restraint Policy when necessary. CCSL also seeks to enjoin the defendants from filing 51A reports arising out of its staff and personnel from utilizing the Restraint Policy. For the following brief reasons, the court finds that CCSL has satisfied its burden with respect to the former but not the latter. As explained above, CCSL has statutory and regulatory authority to implement a restraint policy, see G. L. c. 71, § 37G; 603 Code Mass. Regs. §§ 46.00, and the defendants have not cited to any legal authority, nor is the court aware of any, that allows DCF to dictate or interfere with CCSL’s policies unless the implementation of such policy results in the abuse or neglect ofa child, to which DCF is expressly authorized to investigate. Therefore, any attempts by the defendants ordering or threatening CCSL staff or personnel so that they do not comply with the Restraint Policy is unlawful. Here, CCSL has provided sufficient evidence demonstrating that Culosi has undermined and interfered with the Restraint Policy by either directly threatening or implying to staff members who use physical restraints that they will be subject to a 51A report for suspected child abuse or neglect. As a result of Culosi’s interference, twelve out of fifteen of CCSL’s restraint- trained staff refuse to use restraints out of fear that they will be subject to a DCF investigation. However, CCSL has shown that the staff’s failure to follow the Restraint Policy places the safety and welfare of CCSL’s students, faculty, and staff at risk of physical harm. Therefore, Culosi has blurred the lines between her responsibility to fulfill DCF’s mission and responsibilities and the CCSL’s rights and responsibilities to autonomy to oversee its day-to-day operations. ee Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. The defendants, nevertheless, argue that, because they agree that CCSL has the authority to use its Restraint Policy, and because they have issued a 51B report against the senior staff member involved in the March 6 incident, there is no case and controversy for this Court to review, and this Court does not have subject matter jurisdiction to act. This argument, however, overlooks the fact that CCSL is not contesting the investigation and outcome of the 51A and 51B reports relative to the March 6 incident. Rather, the gravamen of CCSL’s complaint is that Culosi’s actions have had a chilling effect on the Restraint Policy and has interfered with CCSL’s day-to-day operations. Therefore, contrary to the defendants’ assertions, this matter is appropriate for judicial intervention because the complained of harm is not only likely to reoccur but, in fact, continues to occur given the restraint-trained staff’s refusal to do restraints, and their refusal places CCSL’s faculty, staff, and students in danger of physical harm. Just as DCF has the unfettered right, through its employees, to act within its mandate in investigating cases of abuse and neglect of children in the Commonwealth, CCSL has the right to oversee its day-to- day operations by providing an educational environment that is safe for its students, faculty, and staff, which includes the use of physical restraints. Accordingly, for these reasons, CCSL has demonstrated a likelihood of success on the merits of their claims and that there is a substantial risk of irreparable harm in the absence of the injunction. The requested relief also promotes the public interest as it ensures the safety of the public-school students, faculty, and staff and ensures that CCSL can use the Restraint Policy as intended and approved by DESE regulations. To be clear, however, this decision does not in any way inhibit or restrict DCF’s rights to investigate 51A reports filed against any staff member at CCSL for failing to conduct proper restraints in accordance with the Restraint Policy and DESE regulations. Rather, this decision does prohibit DCF and any DCF employee, including to Culosi, from telling CCSL faculty and a Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. staff members that “any hands on a child” will lead to the filing of a51A report. This decision also prohibits DCF from interfering in any way with CCSL’s implementation and execution of the Restraint Policy so long as the use and implementation by trained staff complies with the applicable law and regulations. ORDER For the foregoing reasons, it is hereby ORDERED that CCSL’s motion for a preliminary injunction is ALLOWED in part and DENIED in part. It is ORDERED that DCF and its employees are enjoined and restrained from interfering with CCSL’s day-to-day operations and the ability of its administration, faculty, staff, and other personnel to perform restraints on students in accordance with the applicable law and regulations. However, DCF is authorized to investigate any 51A report that relates to the use of physical restraints by CCSL restraint-trained staff that results in the alleged abuse or neglect of a child. SO ORDERED. May 15, 2024 en E. Campbell Associate Justice of the Sup. Ct. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. EXHIBIT 2 Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES COMMONWEALTH OFMASSACHUSETTS By) DEPARTMENT OF CHILDREN & FAMILIES A e. apa MAURA T. HEALEY Lowell Area Office KATHLEEN E. WALSH GOVERNOR SECRETARY 2 Omni Way, Chelmsford, MA 01824 KIMBERLEY DRISCOLL Tel. (978) 275-6800 + F (978) 452-5896 STAVERNEY. MILLER LIEUTENANT GOVERNOR www.mass.qov/det ACTING COMMISSIONER Collegiate Charter School of Lowell 1857 Middlesex Street Lowell, Massachusetts 01851 To Whom It May Concern | write this to inform you that my coworker Mary Culosi is asking people to file child abuse reports against your school. She is asking coworkers and friends to do this in retaliation of what you are doing to her. Please be aware of this. Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. rea wo ao oO Nee wr ‘yy SKYVF GEG ees eee Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. vei Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888. EXHIBIT 3 Date Filed 6/21/2024 1:19 PM Superior Court - Middlesex Docket Number 2481C 00888.