COMPLAINT FOR DECLARATORYRELIEF AND WRIT OF INJUNCTION

Andre Joseph Thebeau

77 Edlee St.

Fitchburg, MA 01420

(781) 640-3848

andre_thebeau@yahoo.com

Plaintiff in pro per

COMMONWEALTH OF MASSACHUSETTS

WORCESTER COUNTY SUPERIOR COURT

NOW COMES Plaintiff, Andre Joseph Thebeau (Andre), on his own accord as the parent and guardian of students E.T and O.T, as well as the Parents bringing this action on behalf of all parents and guardians of children similarly situated, and for this Complaint for Declaratory Relief and for Writ of Injunction against Defendants, Department of Early Education and Care and Department of Elementary and Secondary Education, and hereby avers as follows:

1. PARTIES

1. Plaintiff Andre Joseph Thebeau is a male adult of sound mind and a resident of 77 Edlee St., Fitchburg, MA 01420. He is the father of E. Thebeau and O. Thebeau. Plaintiff’s children are students are Sizer School.
2. Andre Joseph Thebeau brings this lawsuit on behalf of other parents who feel the constitutional rights of their children have been violated. At this moment, Andre Joseph Thebeau has not determined the names and addresses of those parents. Andre Joseph Thebeau will amend this Complaint once the names of those parents have been ascertained.
3. Defendant Department of Early Education and Care is a department in the State of Massachusetts that aims to support the healthy growth and development of all children by providing high quality programs and resources for families and communities.
4. Defendant Department of Elementary and Secondary Education is the state education agency for the Commonwealth of Massachusetts that oversees the education of children grades pre-k through 12 in Massachusetts.

2. CLASS DEFINITION

5. Plaintiff seeks to represent a class of other parents and legal guardians who have children who are involved in programs facilitated by the Department of Early Education and Care and those who attend public schools overseen by the Department of Elementary and Secondary Education.
6. Because the proposed class includes all parents and legal guardians whose children are involved in programs facilitated by the Department of Early Education and Care and those who attend public schools overseen by the Department of Elementary and Secondary Education, the number of putative class Plaintiffs is so numerous that joinder of all members is impracticable.
7. Whether students can be required to utilize a device, such as a mask, while participating in programs facilitated by the Department of Early Education and Care and attending public schools overseen by the Department of Elementary and Secondary Education without either consent of the parents or legal guardian, and without a lawful order of quarantine from the local health department is a question common to all putative class Plaintiffs.
8. This common question controls the outcome of this matter and, therefore, predominates over any questions affecting only the individual parent named specifically herein.
9. The representative party is a parent whose children attend a school overseen by the Department of Elementary and Secondary Education.
10. Plaintiff is determined to pursue the rights of students under the laws of the State of Massachusetts. As such, Plaintiff will fairly and adequately protect the interests of the class.
11. No class member will be prejudiced in this matter as each parent or legal guardian can merely choose to voluntarily require their children to utilize a device such as a face mask regardless of whether an order of quarantine might issue against their child by the local health department.
12. The class action is an appropriate method for the fair and efficient adjudication of the controversy, as the outcome will be controlled by a central legal question common to all putative class members.
13. FACTUAL BASIS

13. On November 3^rd 2020, the Department of Elementary and Secondary Education issued a Memorandum that compelled the wearing of face masks by students attending elementary and secondary schools in the State of Massachusetts. Exhibit 1.
14. On December 14^th 2020, the Department of Early Education and Care issued guidelines on how to Combat the spread of Covid 19. Among the guidelines is wearing of a face covering or mask. Exhibit 2. See page 14.
15. On June 14^th 2021, a rescission order was issued. It rescinded an earlier order that replaced the Order of the Commissioner of Public Health Maximizing Health Care Provider Availability that was issued on March 29^th 2021. Exhibit 3.
16. The term isolation is defined under 105 CMR 300.020 as follows: “Separation, for the period of communicability, of infected persons from others in such places and under such conditions as will prevent the direct or indirect transmission of an infectious agent to susceptible people or to those who may spread the agent to others.”
17. The term quarantine is defined under 105 CMR 300.020 as follows: “Restricting the freedom of movement of well persons or domestic animals who have been exposed to a communicable disease for a period of time relating to the usual incubation period of the disease, in order to prevent effective contact with those not so exposed.”
18. A mask is a device which use is intended to limit disease transmission.
19. Mass. Gen. Laws Ch. 111 § 1 defines “Board of health” to include the board or officer having like powers and duties in towns where there is no board of health. “Department” is defined as the department of public health.
20. Mass. Gen. Laws Ch. 111 § 6 states as follows: “The department shall have the power to define, and shall from time to time define, what diseases shall be deemed to be dangerous to the public health, and shall make such rules and regulations consistent with law for the control and prevention of such diseases as it deems advisable for the protection of the public health. The department shall also have the power to define, and shall from time to time so define, what diseases shall be included within the term venereal diseases in the provisions of the laws relative to public health.”
21. Mass. Gen. Laws Ch. 111 § 95 provides thus: “If a disease dangerous to the public health breaks out in a town, or if a person is infected or lately has been infected therewith, the board of health shall immediately provide such hospital or place of reception and such nurses and other assistance and necessaries as is judged best for his accommodation and for the safety of the inhabitants, and the same shall be subject to the regulations of the board. The board may cause any sick or infected person to be removed to such hospital or place, if it can be done without danger to his health; otherwise, the house or place in which he remains shall be considered a hospital, and all persons residing or in any way connected therewith shall be subject to the regulations of the board, and, if necessary, persons in the neighborhood may be removed. When the board of health of a town shall deem it necessary, in the interest of the public health, to require a resident wage earner to remain within such house or place or otherwise to interfere with the following of his employment, he shall receive from such town during the period of his restraint compensation to the extent of three fourths of his regular wages; provided, that the amount so received shall not exceed two dollars for each working day.”
22. 105 Mass. Reg. 300.210(E)(2) states that: “If an individual or group is isolated or quarantined in a location other than their residences, the Department or local board of health must obtain an order of the Superior Court authorizing the isolation or quarantine as soon as practicable, but in no event later than ten days following the commencement of isolation or quarantine.”
23. To obtain an order of the Superior Court, the Department, by clear and convincing evidence, must prove that the public’s health and welfare are significantly endangered by a person, that is suspected of having, that has been exposed to, or that is reasonably believed to have been exposed to a dangerously contagious or infectious disease.
24. There are children participating in programs facilitated by the Department of Early Education and Care and learning in public schools overseen by the Department of Elementary and Secondary Education who are not currently positive for Covid-19.
25. There are children participating in programs facilitated by the Department of Early Education and Care and learning in public schools overseen by the Department of Elementary and Secondary Education who are healthy and not currently exhibiting any symptoms of Covid-19.
26. The children participating in programs facilitated by the Department of Early Education and Care and learning in public schools overseen by the Department of Elementary and Secondary Education who are being compelled to wear face masks are not currently subject to an order of quarantine from the Department or their respective local boards of health.

4. COUNT 1 – DECLARATORY JUDGMENT

27. Plaintiff restates and incorporates by reference Paragraphs 1 through 27 as though fully set forth herein.
28. Plaintiff has a right to insist his sons as well as children participating in programs facilitated by the Department of Early Education and Care and learners in schools overseen by the Department of Elementary and Secondary Education not be subjected to any type of quarantine except as provided by law.
29. Consent of parents and/or guardians or a lawful order of quarantine is necessary before their children can be subjected to quarantine. Parents and/or guardians have neither issued consent nor has a lawful order of quarantine been issued by a court of competent jurisdiction to quarantine their children.
30. Use of a face mask falls under the definition of isolation as provided under 105 CMR 300.020 as it is a condition that will prevent the direct or indirect transmission of an infectious agent to susceptible people or to those who may spread the agent to others.
31. At all times, neither the Departments nor the local boards of health have taken any action to aver that the children have, or may have been exposed to Covid-19.
32. It is clear that Defendants have compelled children participating in programs facilitated by the Department of Early Education and Care and schools overseen by the Department of Elementary and Secondary Education to use face masks intended to contain the spread of Covid-19.
33. Defendants have no lawful authority to compel children to use face masks to allegedly contain the spread of Covid-19.
34. The Massachusetts legislature has delegated to the Department of Public Health and the local boards of health supreme authority on matters quarantine.
35. Defendants are not part of the Department of Public Health or the local boards of health.
36. Should the Department of Public Health or the local boards of health desire to compel children to utilize face masks, this can only be accomplished by following procedural and substantive due process under Mass. Gen. Laws Ch. 111 § 95 or 105 Mass. Reg. 300.210(E)(2).
37. Due process requires consent of parents and/or guardians or a lawful order of quarantine compelling the use of a device such as face mask by children to prevent the spread of Covid-19.
38. Any order of quarantine, absent consent of parents and/or guardians, would only be lawful by proving to this Honorable Court by clear and convincing evidence that children have been exposed or may have been exposed to a contagious disease.
39. Defendants have infringed upon the lawful right of children and their parents and/or guardians to be free to choose for themselves what health and safety measures they feel are appropriate for Plaintiff’s sons, absent an order from this Honorable Court to the contrary.
40. An actual controversy exists between the parties in regard to the authority of Defendants to compel children to utilize a device alleged to prevent the spread of an infectious disease absent a lawful order of quarantine issuing on behalf of the Department of Public Health or the local boards of health.
41. An immediate and definitive determination is necessary to clarify the rights and interests of all parties involved.

ANDRE JOSEPH THEBEAU, on his own accord as the parent and guardian of students E.T. and O.T., as well as all parents and guardians of children similarly situated, herein request that this court enter an order:

1. Declaring that the Department of Public Health and the local boards of health, not Defendants, are vested with the authority to Compel children to utilize a device such as mask, which is purported to limit the spread of an infectious disease;
2. Declaring that the Department of Public Health and the local boards of health must have a lawful order of quarantine from the Superior Court before children can be compelled to utilize any type of device, including face masks, while on school premises which use is purported to limit the spread of an infectious disease.; and
3. That this Honorable Court grant such other relief as is just and proper.

REQUEST FOR INJUNCTION

42. Plaintiff restates and incorporates by reference Paragraphs 1 through 43 as though fully set forth herein.
43. Plaintiff and the parents and/or guardians in this class action have a right to insist that their children not be subjected to any type of quarantine except as provided by law.
44. Consent of parents and/or guardians or a lawful order of quarantine is necessary before their children can be subjected to quarantine. Plaintiff and the parents and/or guardians have neither issued consent nor has a lawful order of quarantine been issued by a court of competent jurisdiction to quarantine their children.
45. Use of a face mask falls under the definition of isolation as provided under 105 CMR 300.020 as it is a condition that will prevent the direct or indirect transmission of an infectious agent to susceptible people or to those who may spread the agent to others.
46. At all times, neither the Department of Public Health nor the local boards of health have taken any action to aver that the children have, or may have been exposed to Covid-19.
47. It is clear that Defendants have compelled the children to use face masks intended to contain the spread of Covid-19.
48. Defendants have no lawful authority to compel the chidlren to use face masks to allegedly contain the spread of Covid-19.
49. The Massachusetts legislature has delegated to the Department of Public Health and the local boards of health supreme authority on matters quarantine.
50. Defendants are not part of the Department of Public Health or the local boards of health.
51. Should the Department of Public Health or the local boards of health desire to compel the children to utilize face masks, this can only be accomplished by following procedural and substantive due process under Mass. Gen. Laws Ch. 111 § 95 or 105 Mass. Reg. 300.210(E)(2).
52. Due process requires consent of the parents and/or guardians or a lawful order of quarantine compelling the use of a device such as face mask by the children to prevent the spread of Covid-19.
53. Any order of quarantine, absent consent of the parents and/or guardians, would only be lawful by proving to this Honorable Court by clear and convincing evidence that the children have been exposed or may have been exposed to a contagious disease.
54. Defendants have infringed upon the lawful right of the children and their parents and/or guardians to be free to choose for themselves what health and safety measures they feel are appropriate for their children, absent an order from this Honorable Court to the contrary.
55. Plaintiff and the parents and/or guardians in this class action have no adequate remedy at law in which to seek relief from the irreparable harm caused by Defendants, for every day the children, who are otherwise perfectly healthy, are being unlawfully forced to wear a mask as a device alleged to prevent the spread of an infectious disease.
56. If the children refuse to wear the mask when present at the facilities overseen by Defendants, they will be denied the right to attend those facilities.
57. If the children are in fact a danger to the public health such that they should be compelled to wear a mask, or otherwise utilize any device which is purported to limit the spread of an infectious disease, the Department of Public Health and the local boards of health are the administrative bodies vested with the duty and authority to obtain an order of quarantine either by the consent of parents and/or guardians or otherwise from the Superior Court.
58. For all these reasons, balancing the equities in this matter bodes completely in favor of granting Plaintiff and the parents and/or guardians in this class action their requested relief.

ANDRE JOSEPH THEBEAU, on his own accord as the parent and guardian of students E.T. and O.T., as well as all parents and guardians of children similarly situated, herein request that this court enter an order:

1. Finding under the facts presented herein, Defendants cannot compel Plaintiff’s sons, as well as other children similarly situated, to wear a mask, or otherwise force any of these children to use any device which is purported to limit the spread of an infectious disease, absent an order of quarantine issuing against the children on behalf of the Department of Public Health or the local boards of health;
2. Enter an injunction permanently enjoining Defendants from forcing Plaintiff’s children, as well as other children similarly situated, to wear a mask, or otherwise force any of these children to use any device which is purported to limit the spread of an infectious disease, absent an order of quarantine issuing against the children on behalf of the Department of Public Health or the local boards of health.
3. For such other relief as this Honorable Court deems just and proper.

Dated this ____ day of _________________, 2021.

Respectfully Submitted,

___________________________________

Andre Joseph Thebeau 

VERIFICATION

I, Andre Joseph Thebeau, being duly sworn depose and say that I am the Plaintiff in the above-entitled action, that I have read the foregoing Complaint for Declaratory Relief and for Writ of Injunction and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this _____ day of ____________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent on the ____ day of ____________________, 2021 by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

Department of Early Education and Care

50 Milk St.,

Boston, MA 02109-5002

(617) 988-6600

(800) 439-2370

Department of Elementary and Secondary Education

75 Pleasant St., 

Malden, MA 02148

(781) 338-3000

(800) 439-2370

Dated this ____ day of _________________, 2021.

Respectfully Submitted,

___________________________________

Andre Joseph Thebeau

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