Kenneth Mann, et al v. Palmerton Area School District, et al

Filing

PRECEDENTIAL OPINION Coram: MCKEE, VANASKIE and RENDELL, Circuit Judges. Total Pages: 19. Judge: VANASKIE Authoring.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2821
_____________
KENNETH MANN,
as parents and co plenary guardians of
the estate of SHELDON MANN, an
incapacitated person, and in their own right;
ROSE MANN, as parents and co plenary
guardians of the estate of SHELDON MANN,
an incapacitated person, and in their own right,
Appellants
v.
PALMERTON AREA SCHOOL DISTRICT;
CHRISTOPHER WALKOWIAK, individually and in his
official capacity as a football coach
_______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-14-cv-00068)
District Judge: Hon. A. Richard Caputo
______________
Argued April 27, 2017
______________

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Before: MCKEE, VANASKIE, and RENDELL, Circuit
Judges
(Opinion Filed: September 21, 2017)
Howard J. Bashman, Esq. [Argued]
Law Offices of Howard J. Bashman
2300 Computer Avenue
Suite G-22
Willow Grove, PA 19090
Larry E. Bendesky, Esq.
Adam J. Pantano, Esq.
Robert W. Zimmerman, Esq.
Saltz Mongeluzzi Barrett & Bendesky
1650 Market Street
One Liberty Place, 52nd Floor
Philadelphia, PA 19103
Counsel for Appellants Kenneth Mann and Rose Mann

Thomas A. Specht, Esq. [Argued]
Robin B. Snyder, Esq.
Marshall Dennehey Warner Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Counsel for Appellees Palmerton Area School District
and Christopher Walkowiak
________________
OPINION OF THE COURT

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________________
VANASKIE, Circuit Judge
In November of 2011 Sheldon Mann, a football
player for the Palmerton Area School District, experienced a
hard hit during a practice session. While some players thought
that Sheldon may have been exhibiting concussion-like
symptoms, he was sent back into the practice session by his
Coach, Appellee Chris Walkowiak. After being returned to
practice, Sheldon suffered another violent collision and was
removed from the practice field. He would later be diagnosed
with a traumatic brain injury. In bringing a lawsuit against
Palmerton Area and Walkowiak, Sheldon’s parents asserted
that by requiring Sheldon to continue to practice after
sustaining the first substantial blow, Walkowiak had violated
Sheldon’s constitutional right to bodily integrity under a statecreated danger theory of liability. Also, Palmerton Area, the
Manns alleged, was accountable under Monell v. Department
of Social Services of City of New York, 436 U.S. 658 (1978).
The District Court ruled in favor of Walkowiak and Palmerton
Area on summary judgment, finding that, while there was
ample evidence to suggest that Walkowiak was culpable under
a state-created danger theory of liability, a constitutional right
to protection in the context presented here was not clearly
established in 2011. Accordingly, the District Court granted
Walkowiak qualified immunity and dismissed him from the
lawsuit on that basis. As to Palmerton Area, the District Court
found that the Manns had failed to present evidence sufficient
to warrant a jury trial on the question of whether the school
district had a custom or policy that caused a violation of
Sheldon’s constitutional rights. Accordingly, the District
Court entered judgment in favor of Palmerton Area.

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We agree with the District Court’s conclusions
pertaining to the claims against the football coach:
Walkowiak’s alleged conduct, if proven at trial, would be
sufficient to support a jury verdict in favor of Mann on his
state-created danger claim, but the right in question—to be free
from deliberate exposure to a traumatic brain injury after
exhibiting signs of a concussion in the context of a violent
contact sport—was not clearly established in 2011.
Accordingly, the District Court correctly ruled that Coach
Walkowiak was entitled to qualified immunity. We also agree
with the District Court that the Manns did not present sufficient
evidence to warrant a jury trial on the Monell claim against
Palmerton Area. We will therefore affirm the District Court’s
grant of summary judgment.
I.
Sheldon Mann was a student at Palmerton Area High
School and had participated in its football program starting in
July of 2008. Beginning in 2006, Walkowiak was a team coach
and in 2011 was promoted to Head Coach. After being named
Head Coach, Walkowiak received concussion and safety
training at DeSales University. Because of this training he was
aware of the signs and symptoms of a concussion.
On November 1, 2011, Sheldon, then a 17 year-old
senior, was participating in practice and sustained a hard hit to
his upper body area while playing the outside linebacker
position as part of the “scout” team against the varsity starting
team. 1 Walkowiak claims he did not see the hit, but did
1

The role of a “scout” team in football practice is to play the
role of the opposing team for the school’s next game, with the

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observed Sheldon “rolling” his shoulder.
(JA 509.)
Walkowiak testified at his deposition that he asked Sheldon if
“he was all right,” to which Sheldon replied, “I’m fine,” and
Sheldon continued to participate in the practice session. 2 (Id.)

starting team running plays against anticipated formation of the
opposing team. In this case, Sheldon was playing against the
Palmerton Area’s starting offensive team as they prepared for
their upcoming game against Northern Lehigh High School.
2

Walkowiak indicated that the first hit may have produced
something like a shoulder “stinger,” which he acknowledged
can be “a symptom of [a concussion], depending on where you
were hit.” (JA 1592, 1599). According to the University of
Rochester Medical Center online “Health Encyclopedia:”
Stingers occur when the shoulder and head go in
opposite directions, the head is moved quickly to
one side, or the area above the collarbone is hit.
The injury occurs when a spinal nerve in the neck
is compressed as the head accelerates backward
and the neck is forced toward the affected side.
Stingers may also be caused when the head
accelerates sideways, away from the shoulder,
which overstretches the nerves in the neck and
shoulder region.
University of Rochester Medical Center, Health Encyclopedia,
Put a Stop to Nerve Injuries Called Stingers (2017),
https://www.urmc.rochester.edu/encyclopedia/content.aspx?c
ontenttypeid=1&contentid=2817 (last visited Aug. 24, 2017).

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In multiple depositions, Sheldon’s teammates
testified that they believed Sheldon was suffering from a
concussion after this hit and were surprised that he was allowed
to continue to practice. One teammate even testified that it was
one of the “bigger hits” he had ever seen. (JA 1657.) Another
teammate testified that after the first hit, Sheldon looked as
though he was dizzy and was stumbling around the field,
symptoms that this teammate believed to be associated with a
concussion. And while not explicitly stating that they believed
that Sheldon Mann was suffering from a concussion, other
coaches testified that they were aware of the symptoms of a
concussion and that standard procedure was to remove a
student suffering from concussion-like symptoms from
practice and have him seen by a trainer.
Approximately twenty plays after Walkowiak
observed Sheldon rolling his shoulder, Sheldon sustained a
second hard hit to the upper body area. Walkowiak walked
over to Sheldon to ascertain his condition. Sheldon told
Walkowiak that “it was the hardest hit he received in playing
football.” (JA 550). After this second hit, Sheldon was
removed from the practice field. Practice ended about 10
minutes later, and Walkowiak then accompanied Sheldon to
the trainer’s room.
At the time of this incident, Palmerton Area had in
place a series of policies and procedures outlined in its 20112012 Athletic Handbook. The Handbook required that any
player suffering from injury or illness be excluded from
participation in the sport until cleared by a physician, and
explicitly stated that a student suspected to be injured must be
removed from play and sent to the athletic trainer.

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As a result of the violent hits Sheldon sustained on
November 1, 2011, he suffered a traumatic brain injury and his
parents have been appointed his guardians. The Manns
brought this lawsuit, asserting that Palmerton Area and
Walkowiak (together “Appellees”) had deprived Sheldon of
this constitutionally-protected right to bodily integrity.
Specifically, they argued that Sheldon’s constitutional rights
were violated as a result of Walkowiak’s exercise of authority
in telling Sheldon to continue participating in football practice
after sustaining a hit and exhibiting signs of a concussion.
Plaintiffs also claimed that Sheldon’s constitutional rights were
violated as a result of Palmerton Area’s failure to assure that
injured student-athletes were medically cleared to resume
participation in the sport, failure to enforce and enact proper
concussion policies, and failure to train the coaches on a safety
protocol for head injuries. The parties engaged in discovery,
and on February 1, 2016, Appellees moved for summary
judgment, arguing that there was insufficient evidence to
establish a state-created danger claim against Walkowiak and
a municipal liability claim against Palmerton Area.
Walkowiak also asserted a right to qualified immunity. On
June 2, 2016, the District Court granted summary judgment in
favor of defendants Walkowiak and Palmerton Area. This
appeal followed.
II.
The District Court possessed subject–matter
jurisdiction pursuant to 28 U.S.C. §§1331 and 1343. We
exercise jurisdiction over this appeal pursuant to 28 U.S.C.
§1291. Our review of an order granting summary judgment is
plenary. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Wright v.
Corning, 679 F.3d 101, 105 (3d Cir. 2012) (quoting Orsatti v.
N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)).
III.
State actors sued in their individual capacity under
Section 1983 are entitled to qualified immunity “insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
When a qualified immunity defense is asserted, a court must
determine (1) whether the facts alleged by the plaintiff make
out a violation of a constitutional right, and (2) whether that
right was clearly established at the time of the injury. Yarris v.
Cty. of Del., 465 F.3d 129, 140-41 (3d Cir. 2006) (internal
citation omitted). In this case, the District Court determined
that the first prong of the qualified immunity inquiry was
satisfied: the Manns had presented sufficient evidence to
warrant a jury trial on the question of whether Walkowiak had
violated Sheldon’s constitutional rights. It is to this part of the
qualified immunity test that we first turn our attention.
A.
The Manns’ state-created danger claim derives from
the Fourteenth Amendment Due Process Clause, which
provides that “[n]o state shall . . . deprive any person of life,
liberty, or property without due process of law[.]” U.S. Const.
amend XIV, § 1. We have recognized a successful statecreated danger claim when a plaintiff pleads that

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(1) the harm ultimately caused [by the state
actor’s conduct] was foreseeable and fairly
direct; (2) a state actor acted with a degree of
culpability that shocks the conscience; (3) a
relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable
victim of the defendant's acts, or a member of a
discrete class of persons subjected to the
potential harm brought about by the state's
actions, as opposed to a member of the public in
general; and (4) a state actor affirmatively used
his or her authority in a way that created a danger
to the citizen or that rendered the citizen more
vulnerable to danger than had the state not acted
at all.
Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006)
(internal quotation marks and footnotes omitted).
The first element of a state-created danger claim
requires plaintiffs to establish that the harm sustained as a
result of the defendant’s conduct was “foreseeable and fairly
direct.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d
Cir. 2008). More specifically, this “require[s] a plaintiff to
allege an awareness on the part of the state actors that rises to
[the] level of actual knowledge or an awareness of risk that is
sufficiently concrete to put the actors on notice of the harm.”
Id. at 238.
In his deposition, Walkowiak testified that he was
aware of the symptoms of a concussion and had been trained
in how to identify one. Walkowiak also testified that he was
trained to err on the side of caution when it came to removing
players who may be suffering concussion-like symptoms.

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After Sheldon experienced the first hit, Walkowiak admitted
that Sheldon’s hit could have been characterized as a “stinger”
and that this could be a symptom of a concussion. (JA 1592;
1599).
The District Court held that this evidence would be
sufficient to support a jury finding that “Sheldon’s injury was
a ‘foreseeable and fairly direct’ harm” of being allowed to
continue to practice after sustaining the first big hit. Mann v.
Palmerton Area Sch. Dist., 189 F. Supp. 3d 467, 475 (M.D. Pa.
2016). We agree.
The District Court also held that the Manns had
satisfied the second element of the state-created danger test—
that Walkowiak acted with a degree of culpability that shocked
the conscience. We have observed that “[t]he exact degree of
wrongfulness necessary to reach the ‘conscience-shocking’
level depends upon the circumstances of a particular case.”
Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005)
(quoting Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d
Cir. 1999)). If the circumstances are highly pressurized, it is
necessary to show intentional harm by the state actor; however,
if the state actor has the benefit of deliberation, then all the
plaintiff needs to show is deliberate indifference. Id.
Moreover, in cases “involving something less urgent than a
‘split-second’ decision but more urgent than an ‘unhurried
judgment,’” the relevant inquiry is whether the state actor
“consciously disregarded a great risk of harm,” with the
possibility that “actual knowledge of the risk may not be
necessary where the risk is ‘obvious.’” Sanford v. Stiles, 456
F.3d 298, 310 (3d Cir. 2006).
The District Court correctly concluded that there was
no indication that this was a highly pressurized environment

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for which a showing of intent to harm would be necessary.
Instead, the Manns only needed to prove deliberate
indifference to the safety of a player in the circumstances
presented here to satisfy the conscience-shocking element of
their claim. (JA 12).
In Walkowiak’s deposition testimony, he stated that
he observed Sheldon as exhibiting the signs of a possible
“stinger,” a term that he acknowledged is associated with a
concussion. He also testified, however, that he assumed the hit
was not a substantial one because he did not actually see it.
Contradicting Walkowiak’s testimony is the testimony of an
assistant coach, who, although absent from practice the day
that Sheldon was injured, stated that Walkowiak told him that
Sheldon experienced two hard hits. Walkowiak’s boss,
Athletic Director Andrew Remsing, also testified that
Walkowiak could be considered to have failed to follow school
policy for injuries by allowing Sheldon to remain if he was
suffering concussive symptoms. Finally, the Manns presented
testimony through other players that after Sheldon was first hit,
Walkowiak instructed him to continue practicing. Although
Walkowiak disclaimed knowledge of the first big hit, the
Manns adduced sufficient evidence to call this disclaimer into
doubt. Thus, for the purposes of the summary judgment ruling,
it was appropriate to infer that that Walkowiak was aware that
Sheldon had sustained a substantial blow and exhibited signs
consistent with having sustained a concussion. Under these
circumstances, a jury could find that, by failing to remove
Sheldon from play and requiring him to continue to practice,
Walkowiak was deliberately indifferent to the risk posed by
sustaining a second substantial blow to the head.
To establish the third element of a state-created
danger claim the Manns were required to prove that “a

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relationship between the state and [Sheldon] existed such that
[Sheldon] was a foreseeable victim of the defendant’s acts.”
Sanford, 456 F.3d at 304. This element was not challenged by
Appellees. The bar for proving this element is not terribly
high, as we have previously held that a relationship can exist
where a plaintiff is a member of a group that is subject to
potential harm brought about by the state’s actions. Philips v.
Cty. of Allegheny, 515 F.3d 224, 242 (3d Cir. 2008). It is clear
that a student-athlete stands in such a relationship with the
coaching staff.
The final element of a state-created danger claim
requires a showing that Walkowiak affirmatively used his
authority in a way that created a danger to Sheldon or rendered
him more vulnerable to danger. Bright, 443 F.3d at 281. The
parties dispute whether Walkowiak took an affirmative act that
put Sheldon in danger or made him more vulnerable to risk, but
we find the District Court again to be correct in assessing that
a reasonable juror could find this element of Sheldon’s claim
was also satisfied. If a jury concluded that Walkowiak was
aware of the first blow to Sheldon’s head and observed signs
of a concussion, the jury could conclude that Walkowiak used
his authority in a way that rendered Sheldon more vulnerable
to harm by sending him back into the practice session.
In summary, we hold that there exists a relationship
between a student-athlete and coach at a state-sponsored
school such that the coach may be held liable where the coach
requires a player, showing signs of a concussion, to continue
to be exposed to violent hits. Stated otherwise, we hold that an
injured student-athlete participating in a contact sport has a
constitutional right to be protected from further harm, and that
a state actor violates this right when the injured student-athlete
is required to be exposed to a risk of harm by continuing to

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practice or compete. We now turn to the difficult question of
whether this right was clearly established in November of
2011.
B.
Clearly established law for purposes of qualified
immunity means that
[t]he contours of the right must be sufficiently
clear that a reasonable official would understand
that what he is doing violates that right. This is
not to say that an official action is protected by
qualified immunity unless the very action in
question has previously been held unlawful, but
it is to say that in the light of pre-existing law the
unlawfulness must be apparent.
Wilson v. Layne, 526 U.S. 603, 615 (1999). In addressing the
clearly established prong of the qualified immunity inquiry, we
must define the right allegedly violated at the appropriate level
of specificity. Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir.
2012) (internal quotations omitted). As we explained in Spady
v. Bethlehem Area School District, 800 F.3d 633, 638 (3d Cir.
2015), we must “frame the right at issue in a more
particularized, and hence more relevant, sense, in light of the
case’s specific context, not as a broad general proposition.”
(Internal quotations omitted.)
In Spady, a child suffered “dry drowning” after
participating in a mandatory swim class run by the gym
teacher. Id. at 635. We granted qualified immunity to the gym
teacher, concluding that a child did not have a clearly
established right to dry-drowning intervention protocols while

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participating in gym class. Id. at 641. In arriving at this
conclusion, we observed that the dangers of dry drowning were
not so well known and obvious that a swim teacher should be
expected to take extra precautions to guard against this rare
phenomenon. Id.
In this case, the specific context is a football player
fully clothed in protective gear, including a helmet, who
experiences a violent blow, shows signs of a concussion, and
is required to continue to engage in the same activity that
caused the first substantial hit. We are aware of no appellate
case decided prior to November of 2011 that held that a coach
violates the student’s constitutional rights by requiring the
student to continue to play in these circumstances.
Our conclusion in Spady rested on the fact that
“courts that have found colorable constitutional violations in
school-athletic settings did so where state actors engaged in
patently egregious and intentional misconduct.” 800 F.3d at
641. Compare Neal ex rel. Neal v. Fulton Cty. Bd. of Educ.
229 F.3d 1069, 1076 (11th Cir. 2000) (holding that a student
athlete had made out “a violation of his right under the
Fourteenth Amendment to be free from excessive corporal
punishment,” after being hit with a blunt object by his coach)
and Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246,
252 (2d Cir. 2001) (no qualified immunity where gym teacher
picked up a student by his throat and rammed his head into
bleachers and a fuse box); with Davis v. Carter, 555 F.3d 979,
984 (11th Cir. 2009) (no constitutional violation stemming
from student-athlete's death after rigorous football practice).
No case has been called to our attention where a state-created
danger was established after a student-athlete was required to
continue to compete after sustaining a substantial hit, the
results of which were observed by the coach and could

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potentially signal a head injury, yet where the student-athlete
told the coach that he was fine to continue to play, all of which
is the evidence in this case. And while not binding, we
similarly held as recently as 2013 in a non-precedential opinion
that a cheerleader who suffered a serious injury due to a
coach’s decision to try out a new stunt without proper
protective matting in place, did not violate a clearly established
right held by the athlete. See Hinterberger v. Iroquois Sch.
Dist., 548 F. App'x 50, 54 (3d Cir. 2013).
The Manns rely heavily on L.R. v. School District of
Philadelphia, 836 F.3d 235 (3d Cir. 2016). That case
presented the question of whether a kindergarten teacher who
released a student to a stranger who then sexually abused the
child was entitled to qualified immunity. Id. at 239-240. We
reasoned that the teacher was not entitled to qualified immunity
because the right in question—“an individual’s right not to be
removed from a safe environment and placed into one in which
it is clear that harm is likely to occur, particularly when the
individual may, due to youth or other factors, be especially
vulnerable to the risk of harm”—was clearly established at the
time of the incident. Id. at 249. The Manns maintain that this
same right is at issue in the case at hand. And while L.R. dealt
with an incident that occurred in January of 2013, we relied on
precedent that predated November of 2011. Specifically, L.R.
relied heavily on our 1996 decision in Kneipp v. Tedder, 95
F.3d 1199 (3d Cir. 1996), which involved a police officer
abandoning a plainly inebriated woman on her walk home who
then passed out and suffered a serious injury. Id. at 1203.
Kneipp and L.R. are not dispositive here. L.R.
established liability based on the fact that the risk of harm to
the child would be patently obvious to any adult in that
situation. Allowing a kindergartener to leave the classroom

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with a stranger plainly exposed the vulnerable kindergartener
to a substantial risk of grievous harm. Similarly, Kneipp dealt
with a similarly vulnerable woman who was so inebriated that
she could not even stand or follow simple instructions. Not
only did the police officer detain her and send her male
companion away, but the officer himself then abandoned her
so that she had to walk home alone. Id. at 1201-03. Again, the
risk of harm in abandoning someone who is clearly exhibiting
signs of a physical impairment like severe inebriation
demonstrates such deliberate indifference to the unsafe
situation created by the state actor that imposing liability on the
state actor is appropriate.
By way of contrast, in November of 2011 it was not
so plainly obvious that that requiring a student-athlete, fully
clothed in protective gear, to continue to participate in practice
after sustaining a violent hit and exhibiting concussion
symptoms implicated the student athlete’s constitutional
rights. The touchstone of qualified immunity analysis is
whether there was “sufficient precedent at the time of action,
factually similar to the plaintiff's allegations, to put [the]
defendant on notice that his or her conduct is constitutionally
prohibited.” Mammaro v. New Jersey Div. of Child Prot. &
Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting
McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)). We
look first to the Supreme Court’s cases. Even if support is
lacking there, a “robust consensus of cases of persuasive
authority in the Court[s] of Appeals could clearly establish a
right for purposes of qualified immunity.” L.R., 836 F.3d at
248 (quoting Mammaro, 814 F.3d at 169)). Here, no case from
this Court or any of our sister Courts of Appeals, let alone a
Supreme Court case, has applied the principles we elucidated
in L.R. and Kneipp to the school athletic context. We therefore

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agree with the District Court that the right at issue here was not
clearly established in November of 2011.
“When properly applied, [qualified immunity]
protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Ashcroft v. Al-Kidd, 563 U.S.
731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). Given the state of the law in 2011, it cannot be said
that Walkowiak was “plainly incompetent” in sending Sheldon
in to continue to practice after he saw Sheldon rolling his
shoulder and being told by Sheldon, “I’m fine.” (JA 509). Nor
is there any basis for concluding that he knowingly violated
Sheldon’s constitutional rights. Accordingly, we will affirm
the District Court’s qualified immunity ruling.
IV.
Finally, we must address the Manns’ Monell claim
against Palmerton Area. Local governments, such as school
districts, cannot be held liable under §1983 for the acts of their
employees. Instead, local governments may be found liable
under §1983 for “their own illegal acts.” Connick v.
Thompson, 563 U.S. 51, 60 (2011). A municipality is liable
under §1983 when a plaintiff can demonstrate that the
municipality itself, through the implementation of a municipal
policy or custom, causes a constitutional violation.
The Manns argue that coaches were not adequately
trained on concussion recognition and protection, and had they
been, Sheldon may not have suffered his severe injury.
Specifically, they argue that the school's generic handbook for
dealing with injured student-athletes failed to provide a
protocol for dealing specifically with concussions. They
submit national news articles from 2011 that reported on the

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risk of concussions in football as well as manuals from
neighboring school districts that had implemented concussion
policies as of November 2011. They also rely on Thomas v.
Cumberland County, 749 F.3d 217, 219 (3d Cir. 2014), in
which we assessed the significance of an expert’s report
establishing the need for training corrections officers to
address and avoid inmate–on–inmate violence. We held that
because the evidence showed that the municipality failed to
train its employees to handle recurring acts of violence, the
District Court should not have precluded the factual issues
from going to a jury. Id. at 225-26. Unlike Thomas, the Manns
cite no evidence that would suggest deliberate indifference to
a pattern of recurring injuries. See Berg v. County of
Al1egheny, 219 F.3d 261, 276 (3d Cir. 2000) (“Failure to . . .
train municipal employees can ordinarily be considered
deliberate indifference only where the failure has caused a
pattern of violations”). “Without notice that a course of
training is deficient in a particular respect, decisionmakers can
hardly be said to have deliberately chosen a training program
that will cause violations of constitutional rights.” Connick,
563 U.S. at 62.
In this case there is no evidence of a pattern of
recurring head injuries in the Palmerton Area football program.
Nor is there evidence that Walkowiak or any other member of
the coaching staff deliberately exposed injured players to the
continuing risk of harm that playing football poses. In the
context of the Monell claim, it is also significant that the
Pennsylvania General Assembly did not pass legislation that
mandated training for coaches to prevent concussions until
November 9, 2011, and the legislation did not even go into
effect until July of 2012. See Safety in Youth Sports Act, 24
Pa. Cons. Stat. §§ 5321–5323. Under these circumstances

18

Case: 16-2821

Document: 003112732008

Page: 19

Date Filed: 09/21/2017

there is no basis for concluding that a policy or custom of
Palmerton Area or its failure to provide more intense
concussion training to its coaches caused a violation of
Sheldon’s constitutional rights.
V.
For the foregoing reasons we will affirm the District
Court’s order, entered June 2, 2016, granting summary
judgment in favor of Walkowiak and Palmerton Area.

19