REICHERT v. THE PATHWAY SCHOOL et al
MEMORANDUM. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 3/26/2013. 3/27/2013 ENTERED AND COPIES E-MAILED. (aeg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE PATHWAY SCHOOL,
March 26, 2013
The plaintiff, Wendy Reichert, initiated this case in her
capacity as parent of John Doe, who, while attending defendant
Pathway School, was repeatedly sexually abused by an older
student on school premises.
Ms. Reichert brings her suit
against Pathway School under a negligence cause of action.
brings her suit against Garnet Valley School District, which
participated in the placement of John Doe at Pathway and
remained responsible for his education, under the ―state-created
danger‖ theory of 42 U.S.C. § 1983.
There are two pending motions in this case.
School has moved for partial summary judgment on the plaintiff‘s
claim for punitive damages.
Garnet Valley has moved for summary
judgment on the entirety of the plaintiff‘s state-created danger
For the reasons stated below, the Court denies Pathway‘s
motion for partial summary judgment, and it grants Garnet
Valley‘s motion for summary judgment.
Factual and Procedural History
Minor-plaintiff John Doe was a student residing within
the Garnet Valley School District (―District‖) in Pennsylvania.
From first until third grade, John Doe attended Bethel Springs
Elementary School in that district.
First Am. Compl. ¶ 3; Tr.
Wendy Reichert Dep. 10/13/11 (―Reichert Dep. I‖) 91:20-23.
In or around the fall of 2007, when John Doe was in
third grade, he was diagnosed with Asbergers syndrome, an autism
John Doe‘s behavioral issues manifested
itself in the form of verbal outbursts and tantrums, aggression
problems, and inappropriate comments on the school bus.
school also observed that John Doe had on more than one instance
stood on the toilet in the boys‘ bathroom and looked at students
in other stalls.
Reichert Dep. I 41:8-42:15; 31:3-7, 20-23;
69:18-70:12; Beverly Smith Dep. (―Smith Dep.‖) 20:5-23; Becky
Konkle Dep. (―Konkle Dep.‖) 25:22-26:13.
In or around the spring of 2008, the District informed
John Doe‘s mother, Wendy Reichert, that it could not provide the
The facts presented here are undisputed unless otherwise noted.
Disputed facts are read in the light most favorable to the
nonmoving party, the plaintiff. Sheridan v. NGK Metals Corp.,
609 F.3d 239, 251 n.12 (3d Cir. 2010).
therapy or support her son needed.
Ms. Reichert began having
conversations with teachers and administrators about possible
alternative placement outside of the District.
1/18/12 (―Reichert Dep. II‖) 139:19-140:15; 141:12-14.
At an Individualized Education Program (IEP) meeting
in May 2008, John Doe‘s IEP team discussed the possibility of
moving him to an alternative school for the subsequent school
John Doe‘s IEP team at that point consisted of various
members of the District, including the school psychologist and
assistant director of special education, and Ms. Reichert, who
also holds a post master‘s degree in school nursing.
Dep. I 10:3-8; Reichert Dep. II, 179:1-9; Smith Dep. 47:3-8;
One of the alternative schools considered by the IEP
team was the Pathway School, located in Norristown,
The Pathway School is a private special education
school for elementary and secondary students with autism, brain
damage, learning disabilities, mental and physical handicaps,
speech and language impairment, and social and emotional
Pathway is on the list of state-approved
placements and was Garnet Valley‘s recommended placement for
First Am. Compl. ¶ 5; Reichert Dep. I 50:17-19;
After visiting its campus, Ms. Reichert agreed with
her son‘s placement at the Pathway School, and in September
2008, John Doe began attending Pathway.2
At the time of
enrollment, John Doe was nine years of age.
understood that her son would be one of the younger children on
campus, and she knew there would be eleven-year-olds in his
Reichert Dep. I 54:21-55:11; Dep. Nina Prestia
(―Prestia Dep.‖) 17:20-23; First Am. Compl. ¶ 9-11; Smith Dep.
During the fall semester, John Doe took classes at the
third-grade level, including a third-grade math class.
the youngest student in the class.
eleven years old.
The oldest student was
Prestia Dep. 17:17-20; 18:3-10.
Sometime during that semester, Ms. Reichert approached
the Pathway School to request that John Doe be placed in the
fourth-grade math class.
Ms. Reichert felt that her son was not
able to get instruction on his math level in the third-grade
John Doe was still a student of Garnet Valley School District
and the District was responsible for his transportation to and
from Pathway. Smith Dep. 52:22-53:8; 131:9-20.
This request was put forth and consented to by John
Doe‘s IEP team at a January 2009 meeting, which was attended by
Ms. Reichert, a number of Pathway faculty, and Beverly Smith,
special education director and local education agent (LEA) on
behalf of the District.
Prestia Dep. 32:17-33:18; Reichert Dep.
II 10:24-11:16; Smith Dep. 29:14-30:1; 81:4-5, exh. 1 at 2.
Pathway‘s practice is to provide a waiver for the
parent to sign, which would acknowledge parental consent to
being in a class with students of older ages.
Ms. Reichert with such a written waiver.
never signed the waiver.
However, Ms. Reichert
Prestia Dep. 14:14-24; Dep. Angela
D‘Alessandro (―D‘Alessandro Dep.‖) 27:13-22; Reichert Dep. II
Ms. Reichert knew that there would be students in the
fourth-grade math class up to thirteen years of age, but not up
to fifteen years.
With that knowledge, she gave permission for
her son to enter the class during the spring semester.
Specifically, Ms. Reichert signed a Notice of Recommended
Educational Placement (NOREP) that corresponded to an IEP report
noting an age difference of at least three years.
She had a
phone conversation with Pathway and District employees in which
she gave oral permission to place John Doe in the older class.
She also provided written permission for him to sit with his
classmates at lunch.
Among John Doe‘s classmates in the
advanced math class was a fifteen-year-old student:
Reichert Dep. II 13:24-14:15; 11:3-13:8; Smith Dep. exh. 1 at 6
(January 2009 IEP Form); 2/7/09 Reichert Email (Def. Pathway
School Mot. for Summ. J. exh. H).
Sometime during his time at Pathway, John Doe became
acquainted with an older student referred to in the papers as
John Doe and T.Y. first met in the schoolyard and began
interacting with each other frequently, both at school and on
The Pathway School was aware of this friendship.
Dep. John Doe 5/9/12 (―Doe Dep. I‖) 10:16-18; 76:9-18;
D‘Alessandro Dep. 44:9-19.
At some point around winter break 2008, and lasting
until May 2009, John Doe and T.Y. began having sexual encounters
while on school grounds and during school hours.
Although Garnet Valley disputes the date on which John Doe and
T.Y. first began taking the same class, it is undisputed that
the two at one point had math class together. Tr. Hr‘g 2/15/13
53:5-20. Deposition testimony from the fourth-grade math
teacher states that T.Y. and John Doe were in math class
together for 45 minutes each day. D‘Alessandro Dep. 30:6-12;
42:1-24; 58:6-18. T.Y. states similarly in his deposition.
T.Y. Dep. 76:9-18.
During the relevant school year, 2008-09, T.Y. turned fifteen
years old in March. T.Y. Dep. 10:14-15, 29:14-20.
contact took place in different bathrooms around the school.
The first encounter was involuntary; following the first time,
the two met numerous times to have oral and anal sex.5
The sexual encounters often took place in two
bathrooms that were very close in proximity to the classroom of
John Doe‘s homeroom teacher.
On more than one encounter, John
Doe left his homeroom class to go to the bathroom to meet T.Y.,
who had class in a different building and walked over to John
Doe‘s building unaccompanied.
The homeroom teacher‘s aide
observed John Doe walking to the bathroom until John Doe shut
On several occasions, his teacher or her aide knocked
on the bathroom door as John Doe and T.Y. were engaging in
sexual acts but they were not discovered.
John Doe was known by
staff to regularly spend fifteen to thirty minutes in the
T.Y. Dep. 37:23-38:10; 63:8-15; 71:2-12; 80:15-81:1;
Doe Dep. I 22:8-15, 29:10-14; 33:15-35:9; Doe Dep. II 50:9-52:8;
Jermaine Fisher Dep. (―Fisher Dep.‖) 40:24-41:5;
John Doe has testified that the two engaged in sexual acts 12
or 13 times, 10 or 11 times in the bathroom by his homeroom
classroom. Doe Dep. I 40:8-18.
The sexual acts ended on May 5, 2009, when Ms.
Reichert discovered a journal entry written by John Doe stating
that he had had sex with T.Y.
Ms. Reichert thereafter notified
the Pathway School, Children and Youth Services, and the West
Norriton Police Department.
Upon questioning, T.Y. admitted to
police that he had had sexual encounters with John Doe.
Reichert Dep. II at 22:9-20; 26:12-18; 29:6-15; 32:4-12; Mark
Wassmer Dep. 32:4-9.
Defendant Garnet Valley School District‘s
The Garnet Valley School District was involved in the
decision to place John Doe at the Pathway School.
a list of appropriate schools that were approved by the
Department of Education and the local county boards and brought
them to Ms. Reichert‘s attention.
The District recommended that
Pathway School be the school of placement; it had placed at
least one other student with the Pathway School and had no
negative experiences there.
Ultimately, John Doe‘s IEP team,
which consisted of District employees and Ms. Reichert, made the
decision to place John Doe at the Pathway School.
recommendation was then made to the superintendent‘s office, who
gave oral approval to proceed.
Smith Dep. 59:18-60:7;
Dep. II 179:1-13; Dep. Michael Christian (―Christian Dep.‖)
21:2-20; 22:19-23; Tr. Hr‘g 2/15/13 47:21-48:6.
Following John Doe‘s placement at Pathway, the
District maintained some involvement in John Doe‘s day-to-day
activities and made some decisions related to his education.
First, whereas John Doe had a one-on-one aide at Bethel Springs,
he no longer had an aide at Pathway.6
According to District
employees, Pathway instructed the District to revise the IEP and
take the one-on-one aide off the IEP.
Similarly, whereas John
Doe used a private, one-person bathroom at Bethel Springs, he
did not have such accommodations at Pathway.
The decision to
have a private bathroom at Bethel Springs resulted from reports
that John Doe was climbing on stalls and looking at others.
John Doe‘s actions were not perceived as sexual in nature by
District employees7 or Ms. Reichert, and they were not recounted
It is undisputed that the student-to-staff ratio at Pathway was
much lower than that in the District. Def. District Mot. at 32.
For example, John Doe‘s teacher at Bethel Springs testified
that she did not find John Doe‘s actions to be sexually
inappropriate, but rather the actions of an eight-year-old who
enjoyed climbing. Konkle Dep. 25:22-26:12. See also Reichert
Dep. II 93:14-94:1.
Smith Dep. 61:12-71:8; Barbara Shaw Dep. (―Shaw
Dep.‖) 86:10-87:7; 90:13-91:1.
In addition, beginning in January 2009, the District
hired a paraprofessional to ride with John Doe on the bus to
Ms. Reichert was informed that the District hired a
paraprofessional because John Doe was having ―increasing issues‖
on the bus.
The paraprofessional was instructed by Beverly
Smith to ―just write the behaviors down.‖
had noticed a pattern that John Doe‘s sexual behaviors were
increasing but, abiding by her instructions from Ms. Smith, made
notes only as to her observations of behaviors and did not note
that the behaviors seemed to be increasing.
Dep. Marian Seidman
37:11-23; Reichert Dep. I 119:17-120:1.
Finally, the District maintained involvement with John
Doe through its role at his IEP meetings.
Ms. Smith, as an LEA,
was involved in the IEP team decision to move John Doe to the
higher-level math class.
During the team meeting, Ms. Smith did
not inquire about the age of the older students and she did not
know that a fifteen-year-old was in the class.
She did not
bring up her knowledge of John Doe‘s behavior in the bathroom
while at Bethel Springs.
Smith Dep. 80:22-81:5; 83:1-23; 131:3-
See also Section C.1 infra.
Defendant Pathway School‘s Involvement
The plaintiff has made two primary allegations of
negligence against the Pathway School.
First, she argued that
Pathway was negligent in placing John Doe in a classroom with a
fifteen-year-old student without written informed parental
Second, she argues that Pathway was negligent in
failing to supervise John Doe and T.Y. despite having reason to
The facts related to these allegations follow.
Placing John Doe in Higher Math Class
Under Pathway School policies, written informed
consent is required in order to place a student in a class with
children more than three years older.
Here, John Doe‘s fourth-
grade math class spanned an age range of at least five years,
and would thus require a form.
Ms. Reichert had a copy of this
form, but she never signed it.
Prestia Dep. 14:14-24;
D‘Alessandro Dep. 27:13-22; Reichert Dep. II 15:4-12.
Ms. Reichert did communicate to Pathway staff that she
approved of John Doe‘s placement in the class, and she signed a
Notice of Recommended Educational Placement (NOREP) that
corresponded to an IEP report noting an age difference of more
than three years.8
However, the NOREP did not explicitly list
the oldest age present in the math class, and Ms. Reichert did
not know that a fifteen-year-old would be in the class.
Reichert Dep. II 11:3-16; Def. Pathway Mot. exh. H; see also
Smith Dep. Exh. 1 at 6 (January 2009 IEP Form).
Failure to Supervise John Doe and T.Y.
The plaintiff also contends that Pathway was negligent
in its supervision of T.Y. and John Doe, students with histories
of social disciplinary issues.
With regard to T.Y., the record reflects that T.Y.‘s
disciplinary history at the Pathway School consisted of 136
discipline citations, including incidents of a sexual nature,
bullying, and numerous elopements.
T.Y. was known to regularly
elope from class, leaving the classroom building, and could not
be found for periods of fifteen to thirty minutes.
relevant time period, Pathway did not assign an aide to T.Y.
According to Ms. Reichert, she signed this NOREP with the
additional stipulation that the IEP team ―continue to seek
another [school] placement‖ for John Doe – that is, that John
Doe transfer out of Pathway. She sought this transfer because
she did not feel that her son was being challenged in the thirdgrade math class. Reichert Dep. I 111:23-112:20; Reichert Dep.
Pl. Opp. to Pathway exh. I (Incident Report); id. at exh. L,
Internal Investigation Report, at 2 (statement of Lorraine
Serzega, T.Y.‘s teacher); T.Y. Dep. 28:20-29:5; 30:23-31:10;
With regard to John Doe, his teacher and her classroom
aide observed around March 2009 that John Doe had been spending
extensive time in the bathroom.
proximity to the classroom.
The bathroom was very close in
John Doe was not accompanied to the
bathroom but was ―observed‖ from the door, allowing for
instances where he eloped and instances in which sexual
encounters were interrupted by knocking but no adult actually
entered the bathroom.9
There is also evidence that Pathway had
received notes from the school bus paraprofessional hired by the
District, which stated that John Doe had demonstrated numerous
sexual behaviors while on the bus.
These behaviors occurred
around the same time that the sexual contact with T.Y. began.
Prestia Dep. 83:1-9; 102:24-103:23; Fisher Dep. 40:24-41:5,
Julie Alleman, Director of Clinical and Behavioral Sciences at
the Pathway School, stated at her deposition that the homeroom
teacher‘s classroom was ―split in half by the hallway . . . so
the teacher, teacher‘s aide or maybe another aide in the
classroom, would stand proximate to the hallway so that they
could see the students as they went down to the bathroom, so
they may not have always been escorted, but observed.‖ Dep.
Julie Alleman (―Alleman Dep.‖) 57:23-58:9.
39:1-22; Doe Dep. II 55:8-56:14, 60:7-22; Doe Dep. I 43:13-44:1;
Smith Dep. 156:2-19; Tr. Hr‘g 2/15/13 13:4-10.
After being alerted by Ms. Reichert of the sexual
relationship between John Doe and T.Y, the Pathway School
initiated an internal investigation and interviewed a number of
According to the report, the math teacher of John Doe
and T.Y. stated that she had seen the two ―interacting with each
other frequently as friends. . . . She feels that their
friendship should be closely monitored and felt it was
inappropriate given the difference in the boys‘ ages.
stated the relationship made her feel ‗uncomfortable.‘‖
Internal Investigation, Pl. Opp. exh. L, at 3 (statement of
The plaintiff filed her original complaint on January
28, 2011 and an amended complaint on April 11, 2011.
amended complaint consists of two counts:
1) against the
defendant Garnet Valley School District, a state-created danger
claim under 42 U.S.C. § 1983; and 2) against the defendant
Pathway School, a state law negligence claim.
Garnet Valley School District‘s Motion for Summary
Judgment was filed on November 1, 2012.
Pathway School‘s Motion
for Partial Summary Judgment was filed on November 12, 2012.
The motions were fully briefed by both parties.
The Court held
oral argument on February 15, 2013.
In the instant case, the defendants have separately
moved for summary judgment under Fed. R. Civ. P. 56(a).10
Defendant Garnet Valley has argued that the plaintiff cannot
sustain her state-created danger claim against it.
Pathway School moves for partial summary judgment on the
plaintiff‘s claim for punitive damages, arguing that she has
failed to demonstrate deliberate indifference.
proceeds in this order.
The defendant is entitled to summary judgment if there ―is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.‖ Fed. R. Civ. P.
56(a). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is
genuine if there is a sufficient evidentiary basis for a
reasonable jury to find for the non-moving party; it is material
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Garnet Valley‘s Motion for Summary Judgment
The plaintiff asserts in her amended complaint that
the District‘s actions and conduct with respect to its placement
and supervision of John Doe at Pathway School violated its
obligations under 42 U.S.C. § 1983 and the state-created danger
The District argues that because the plaintiff has
not put forth sufficient evidence to support her position, it is
entitled to judgment as a matter of law.
In general, the Due Process Clause of the 14th
Amendment does not impose an affirmative obligation on the state
to protect its citizens.
DeShaney v. Winnebago Cnty. Dept. of
Soc. Servs., 489 U.S. 189, 195 (1989).
exceptions to this rule.
However, there are two
First, under the special relationship
doctrine, a state is liable if the state affirmatively
―restrain[s] the individual‘s freedom to act on his own behalf.‖
Id. at 200.
Second, under the state-created danger doctrine, a
state is liable if state authority is affirmatively employed in
a manner that places him ―more vulnerable to injury from another
source than he or she would have been in the absence of state
(3d Cir. 2003).
Schieber v. City of Phila., 320 F.3d 409, 416
The plaintiff‘s claim against the District is
asserted under the latter exception, state-created danger.
In order for a plaintiff to properly assert a statecreated danger claim, she must establish the following four
The harm ultimately caused was foreseeable and fairly
The state actor acted with a degree of culpability
that shocks the conscience;
A relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable
victim of the defendant‘s acts; and
A state actor affirmatively used his 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.
Kneipp v. Tedder, 95 F.3d 1199, 1208-09 (3d Cir. 1996).
In the instant case, the plaintiff has argued that the
following actions on the part of the District give rise to a
state-created danger claim:
a) as part of the IEP team, the
decision to place John Doe out-of-district at an alternative
school; b) its decision to recommend and place John Doe at the
Pathway School; c) its failure to alert Pathway School to John
Doe‘s actions in the Bethel Springs bathroom; d) its decision
regarding the discontinuance of John Doe‘s one-on-one aide; e)
its failure to properly monitor John Doe once he began to attend
Pathway School; and f) as part of the IEP team, the decision to
move him to the fourth-grade math class after his first semester
See Tr. Hr‘g 2/15/13 30:23-31:5.
The first two
actions took place as part of, or in the course of, the decision
to place John Doe at Pathway.
The second two took place
sometime during the summer before John Doe began attending
The final two took place after John Doe began
The Court will first analyze whether the
facts surrounding each set of actions, separately, make out a
state-created danger claim.
It will then analyze whether all
the District actions, taken together, support the plaintiff‘s
state-created danger claim.
Decision to Place John Doe at Pathway
First, the Court considers the set of actions taken by
Garnet Valley in the course of its decision to place John Doe at
the Pathway School.
Garnet Valley recommended that John Doe be
placed out-of-district at an alternative school and, separately,
it recommended Pathway as that school.
The Court finds that
these actions do not satisfy the foreseeability requirement of
the state-created danger doctrine because Garnet Valley did not
have a sufficiently concrete reason to be on notice that the
sexual assaults would occur at Pathway.
Nor does the District‘s
culpability in taking those actions ―shock the conscience.‖
Because the plaintiff has not demonstrated foreseeable,
conscience-shocking behavior by the District, the Court need not
analyze the other two requirements of a state-created danger
In order to find that Garnet Valley is liable under
the state-created danger doctrine, the plaintiff must first
demonstrate that the harm caused to John Doe was sufficiently
foreseeable and direct.
Foreseeability exists if there is ―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.‖
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 238 (3d Cir.
Put another way, at the time of its state action, the
District must have had sufficient reason to be aware of the risk
that the harm might occur.
The District‘s actions in placing John Doe at Pathway
were not taken with sufficient notice of harm.
decision was made, the District was not aware of a concrete risk
that John Doe might be sexually assaulted on Pathway school
In fact, its understanding was to the contrary:
Pathway had been approved by the state as an alternative school
for children with special education needs.
previous experience with Pathway had not resulted in any
problems, and it had no knowledge of any previous sexual
assaults that had occurred at Pathway.
It was unforeseeable
that John Doe‘s experience while attending Pathway would diverge
so radically from the experience of others.
The plaintiff puts forth three arguments against this
First, she contends that it was inappropriate to
send John Doe, a student with Asbergers and a behavioral history
with issues related to the bathroom, to Pathway to be the
youngest student on campus.
Pl. Opp. to District at 26.
Relatedly, she argues that there is ―an inherent danger‖ in
placing a ten-year-old with older students.
she makes reference to an expert opinion that stated that the
Individuals with Disabilities Education Act (IDEA) was
improperly followed in the course of deciding to place John Doe
out-of-district in the first instance.
Id. at 43.
With regard to John Doe in particular, the Court holds
that the evidence in the record does not demonstrate that the
District had sufficient notice that he was likely to be sexually
victimized at Pathway.
Such an argument could be termed a
―propensity‖ argument – that John Doe‘s previous behavior may
reflect a propensity for sexual behavior that should have been
perceived and treated with caution by the District.11
John Doe‘s behavioral history did not put the District
on notice of any ―propensity‖ to be sexually victimized.
Although it was reported that John Doe had looked over bathroom
stalls to observe other children while at Bethel Springs, his
teachers and the Assistant Director of Special Education all
stated that they did not believe these acts were sexual in
John Doe‘s mother, who holds an advanced degree in
The Court notes that the allegation here is that the District
failed to foresee, and properly protect against, the
―propensity‖ of the plaintiff, John Doe, to become a victim of
sexual abuse. In contrast, the state-created danger cases cited
herein involve the ―propensity‖ of a third-party perpetrator,
not the plaintiff. The Court takes no position on whether this
difference changes the foreseeability analysis, because the
evidence on the record does not support the plaintiff‘s
foundational point that John Doe displayed signs of such a
school nursing, also testified to that effect.
corroborated the teachers‘ explanation that John Doe liked to
climb, and that he used the bathroom to escape the supervision
of his female teachers.
See, e.g., Doe v. Allentown, No. 06-
1926, Order on Summ. J., at *9, E.D. Pa. Mar. 21, 2012 (Docket
No. 286) (holding that although school officials knew that the
eventual perpetrator had a history of misbehaving in sexually
suggestive ways, there is no evidence that he had ―done anything
that would have put [o]fficials on notice of the serious risk he
posed.‖); see also Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 904 (3d Cir. 1997).
In support of the ―inherent danger‖ argument,
the plaintiff relies upon a Pennsylvania state regulation that
governs Pathway‘s handling of age range restrictions for
students with disabilities.
In relevant part, Pennsylvania Code
§ 14.146 provides that a ―student with disabilities may not be
placed in a class in which the chronological age from the
youngest to oldest child exceeds [three years in elementary
school] unless an exception is determined to be appropriate by
the IEP team of the student and is justified in the IEP.‖
Pa. Code § 14.146.
Thus, by state regulation, in order to place
a student with disabilities in a class with others more than
three years older, the IEP team, including the parent, must
determine that such an exception is appropriate and justified.
According to the plaintiff, this regulation demonstrates that
there is an inherent danger in the actions of the District in
placing John Doe with older students.
The relevance of this state regulation is minimized,
however, by the fact that John Doe was not immediately placed
into the advanced math class upon his arrival at Pathway.
John Doe first enrolled at Pathway, he was nine years old and
the oldest student in his class was eleven; thus, the age
difference was less than three years under discussion in 22 Pa.
Code § 14.146.
It was only after he moved to the advanced math
class the next semester that he became integrated with fifteenyear-olds.
Thus, it is important to distinguish between the
District‘s action in placing John Doe at Pathway, a decision in
which the District was very involved, and the later action of
moving John Doe to the fourth-grade math class, a decision in
which the District had a minor role, as discussed infra.
The plaintiff also relies upon opinions stated by the
assistant superintendent and a Pathway schoolteacher which refer
to a certain ―inherent‖ danger in mixed-age classes.
to Dist. Mot. at 37; Tr. Hr‘g 2/15/13 27:20-28:15.
statements were made in hindsight and in the context of
describing John Doe‘s spring semester at Pathway — that is to
say, unsupervised contact between a ten-year-old and a fifteenyear-old — and not what the District was aware of when making
its placement decision in the first instance.
At the time the District made the decision to place
John Doe at Pathway, the District was not aware of potential
violations of state regulations.
It had no reason to be
suspicious of Pathway‘s offerings, except for the general
understanding that John Doe would be on a campus with older
This had occurred in the past without problem and is
insufficient to support a finding of foreseeability here.
The Third Circuit‘s foreseeability analysis in Morse
v. Lower Merion School District is relevant.
In Morse, the
survivors of a teacher who was shot and killed in her classroom
brought suit against the school district that maintained the
132 F.3d 902, 904 (3d Cir. 1997).
The shooter had
entered the building through a rear entrance that was unlocked,
in violation of school policy, to allow construction contractors
to come and go more easily.
The shooter was a local
resident with a history of mental illness who had been seen
loitering in the school area in the week preceding the murder.
Id. at 908.
The Third Circuit held that, as a matter of law, the
plaintiff did not demonstrate foreseeable and fairly direct
The defendant‘s awareness of the shooter‘s loitering was
insufficient to put it on notice that she — or any other person
— would later engage in a school shooting; moreover, her attack
was not a ―fairly direct‖ result of the unlocked rear door.
at 908-09; see also Grau v. New Kensington Arnold Sch. Dist.,
429 Fed. Appx. 169, 173-74 (3d Cir. 2011) (finding inadequate
and attenuated foreseeability where, after defendant school
failed to close the campus during school hours, a truant student
left school early and was killed in an ensuing car crash);
compare Kneipp, 95 F.3d at 1208 (finding foreseeability in the
harm caused when defendant police officers encountered a clearly
intoxicated woman, sent her companion home first, failed to
escort the intoxicated woman home, and the woman fell down a
flight of stairs).
In Morse, even though a safety policy had been
violated, and even though the school had observed the shooter
―loitering‖ in the parking lot the week before the shooting, the
Court found that this was insufficient to give notice that she
would come back armed with a gun.
Here, the District
had selected Pathway from a list of state-approved placements.
It had not experienced any problems (sexual or otherwise) with
Pathway in the past.
It was aware that John Doe would be placed
with older students, but this decision was approved by the IEP
team and involved a less-than-three-year age difference.
John Doe specifically, the District was aware of a number of his
behavioral problems, including incidents in the bathroom, but
nothing that would bring about an awareness of a risk that he
would become sexually victimized.
Finally, the plaintiff argues that the District
violated many IDEA provisions in the course of deciding to place
John Doe out-of-district in the first instance.
the plaintiff, the District‘s violations of IDEA are relevant in
foreseeability analysis because ―IDEA regulations exist for a
reason, and violations of IDEA would naturally result in
Pl. Opp. at 43.
The Court finds
that the IDEA failures identified in this particular case,
namely failures to conduct appropriate re-evaluations, modify
behavior plans, and enact proper disciplinary measures, do not
give rise to sufficient notice to satisfy the foreseeability
To find foreseeability, the Court would have to
accept the premise that the IDEA violations may have resulted in
a mistaken conclusion that a student could not be educated
within the District, which may have resulted in the District‘s
recommendation of placement at Pathway School, which may have
resulted in a placement in a higher math class, which may have
resulted in the sexual assaults of John Doe.
Demidont at 25 (Docket No. 48-21).
This is far too attenuated.
―Shocks the Conscience‖
For similar reasons, the plaintiff has not
demonstrated that the District ―acted with a degree of
culpability that shocks the conscience.‖
Kneipp, 95 F.3d at
The ―shocks the conscience‖ standard changes with the
amount of time the state actors have to deliberate.
Stiles, 456 F.3d 298, 309 (3d Cir. 2006).
Here, both parties
agree that given the amount of time for forethought, the
District‘s deliberate indifference would be sufficient to shock
See id. (―[I]n cases where deliberation is
possible and officials have the time to make ‗unhurried
judgments,‘ deliberate indifference is sufficient.‖); see also
Def. District Mot. at 24.
An action is taken with deliberate
indifference if it ―evince[s] a willingness to ignore a
foreseeable danger or risk.‖
Morse, 132 F.3d at 910.
The Court holds that the District‘s decisions with
respect to recommending and choosing Pathway School were not
taken with deliberate indifference.
The District‘s decisions
were made by weighing the facts in front of it, including its
understanding of Pathway and the behavioral history of John Doe.
The District could not have reasonably foreseen that its actions
would result in the sexual abuse of John Doe, and, in making
these decisions, it did not ignore any such foreseeable risk.
See id. (―Of course, the notion of deliberate indifference
contemplates a danger that must at least be foreseeable.‖).
District‘s actions with respect to placing John Doe at the
Pathway School fails the ―shocks the conscience‖ requirement, as
Actions Taken During the Summer
Second, the Court considers District actions taken
after the initial decision to place John Doe at Pathway.
Sometime before the fall of 2008, the District decided, without
a full IEP evaluation, to remove the one-on-one aide previously
assigned to John Doe when he attended Bethel Springs.12
addition, it did not inform Pathway about John Doe‘s previous
The Court holds that the District‘s decision to remove
the one-on-one aide fails the foreseeability and ―shocks the
Given that Pathway School dealt exclusively
with special needs children, and that it had a better staff-tostudent ratio, it was reasonable to concur with Pathway‘s
position that John Doe no longer needed a District aide.
from the same set of ―warning signs‖ discussed above, the
District did not have any additional information that would have
increased its awareness of a risk to John Doe.
Thus, at the
time it made the decision to remove the aide, the District was
not on sufficient notice that this decision could result in the
sexual assaults that ultimately occurred.
There is dispute as to whether proper procedures were followed
in removing the one-on-one aide. Even if, by construing the
facts in the light most favorable to the nonmoving party, the
Court concluded that the IDEA was violated, this would still be
insufficient to give rise to a state-created danger claim. It
does not shock the conscience that the District relied upon
Pathway‘s communication of its support needs without obtaining
consent from the IEP team. Moreover, it is not foreseeable that
a failure to obtain formal consent would result in the
subsequent sexual assault of John Doe. The fact that an IDEA
violation occurred cannot in and of itself make an event
foreseeable when, as here, it otherwise was not.
The District‘s decision not to tell Pathway about John
Doe‘s actions in the bathroom fails the foreseeability and
―shocks the conscience‖ requirements, as well.
teachers and administrators at Bethel Springs did not categorize
John Doe‘s behaviors as sexual in nature, which was corroborated
by testimony from Ms. Reichert, it was not sufficiently
foreseeable that a decision not to relay that information to
Pathway would result in harm to John Doe.
Moreover, it is clear that the District‘s failure to
relay this information falls squarely outside of the
―affirmative act‖ requirement13 of a state-created danger claim.
The state-created danger claim is ―predicated upon the states‘
affirmative acts which work to the plaintiffs‘ detriments in
Although the term ―affirmative‖ is a difficult standard-bearer
because ―the line between action and inaction may not always be
clear,‖ the Third Circuit has observed that it has ―never found
a state-created danger claim to be meritorious without an
allegation and subsequent showing that state authority was
affirmatively exercised.‖ Bright, 443 F.3d at 282. For
example, in Ye v. United States, the Third Circuit held that a
defendant‘s assurance to the plaintiff that he was ―fine,‖ when
in fact the plaintiff required emergency care, was not a
sufficiently ―affirmative‖ act. 484 F.3d 634, 643 (3d Cir.
2007). The Court reasoned that because he could have acted on
his own behalf to obtain private assistance, the state action
did not ―cause‖ his harm. Id.; see also Walter v. Pike Cnty.,
Pa., 544 F.3d 182, 194 (3d Cir. 2008).
terms of exposure to danger.‖
D.R. v. Middle Bucks Area
Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d Cir. 1992), as
cited in Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d
The dispositive factor is whether the state actors
―used their authority to create an opportunity that otherwise
would not have existed for the third party‘s crime to occur.‖
Morse, 132 F.3d at 908 (internal citation omitted).
Here, the District‘s failure to convey the stallclimbing information to Pathway is not an affirmative act.
did not create an opportunity that otherwise would not have
existed for the third party‘s crime to occur.
See, e.g., D.R.
v. Middle Bucks Area, 972 F.2d at 1367 (in a sexual assault on
school grounds case, holding that teachers‘ failure to supervise
―show nonfeasance but they do not rise to the level of a
constitutional violation‖), cited positively by Kneipp, 95 F.3d
at 1207; see also Bright, 443 F.3d at 283.
It may have been
helpful to relay all information about John Doe to Pathway
during the transition period, but a failure to have done so will
not give rise to a state-created danger action.
Actions Taken Upon Enrollment at Pathway
Next, the Court considers the District‘s actions after
John Doe was enrolled at Pathway.
The plaintiff has alleged
that the District is liable for its failure to properly monitor
John Doe, specifically with respect to monitoring his actions on
the bus and with respect to its involvement in placing John Doe
in the fourth-grade math class.
The Court finds that neither of
these actions supports a claim of state-created danger.
The record reflects that upon John Doe‘s enrollment at
Pathway, the District‘s involvement in his day-to-day education
reduced a significant degree.
Although the District remained
tasked with ensuring that John Doe had access to a free
appropriate public education, its level of involvement can
reasonably reflect the fact that John Doe was schooled and
monitored by Pathway.
From a legal perspective, this decrease
in level of involvement affects whether the District‘s ―act‖ was
sufficiently affirmative in ―creating‖ the opportunity for the
sexual assaults to occur.
The plaintiff argues that two actions taken by the
District after John Doe was enrolled at Pathway give rise to a
state-created danger claim.
First, she points to the actions
taken by the District with regarding to bussing John Doe to and
Sometime in January 2009, the District had hired a
paraprofessional to observe John Doe‘s actions on the bus, and
that paraprofessional was instructed by the District to ―just
write the behaviors down‖ and not offer her conclusions as to
patterns of behavior.
The plaintiff contends that the
District‘s instruction to the paraprofessional was an order to
put her ―head in the sand.‖
Pl. Opp. to Dist. Mot. at 16.
Although the paraprofessional did not report on
patterns of increased sexual behaviors, she did report on the
specific incidents that occurred, some of them being sexual in
The paraprofessional‘s report should have provided the
District with approximately the same amount of information as it
would have received without that instruction.
instruction to the paraprofessional, therefore, did not ―create‖
the conditions for the sexual assaults.
Second, the plaintiff contends that the District‘s
involvement in the allegedly improper placement of John Doe in
the fourth-grade math class can sustain her state-created danger
Upon entering Pathway, John Doe had been placed in the
third-grade math class.
However, Ms. Reichert petitioned for
his placement in an advanced class, which was granted by the IEP
team sometime in early 2009.
Ms. Reichert did not sign the
permission form provided by Pathway.
Taking the evidence in the light most favorable to the
plaintiff, the Court does not find that the District‘s actions
created the conditions in which John Doe was sexually
The District‘s involvement in the IEP decision was
limited to the participation of Ms. Smith, the District‘s LEA.
At that point, the IEP team consisted of ten members: eight
Pathway staff, Ms. Smith, and John Doe‘s mother.
In the context of a state-created danger claim, the
Court has not found (nor has the plaintiff pointed to) any case
law for the proposition that one state actor‘s participation in
a team decision is sufficient to satisfy the ―affirmative act‖
It is unclear whether a state authority is
―affirmatively exercised‖ when the decision was made by a team
including, among other interested parties, a state actor.
Notwithstanding the affirmative act requirement, the
plaintiff‘s claim also fails on foreseeability and the ―shocks
the conscience‖ standard.
When the IEP team made the decision
to approve John Doe‘s math class placement, the District
(through Ms. Smith) still did not have sufficient information to
place it on notice that harm to John Doe would likely result.
Due to its limited involvement up to that point, it had obtained
minimal additional information apart from what has already been
discussed by the Court.14
As part of the IEP team, Ms. Smith was
privy to the same set of information as Ms. Reichert.
was not aware that there would be fifteen-year-olds in the
advanced math class.
She has testified that she relied on the
opinions of Pathway staff, who had a better understanding of
John Doe‘s current academic and social needs.
The Court holds
that Ms. Smith‘s decision to agree with the IEP team does not
evince foreseeability and certainly does not shock the
conscience as required under this doctrine.
Finally, having conducted the analysis as to each set
of District actions and having determined that they individually
do not give rise to a state-created danger claim, the Court now
considers all of the District actions together as a whole.
Court holds that the District‘s actions, taken together, do not
make out the plaintiff‘s state-created danger claim.
point did the District have sufficient notice that John Doe
would become subjected to sexual assault.
None of its actions,
The District did not receive the reports from the school bus
paraprofessional until after the decision was made to move John
Doe to the fourth-grade math class.
pre- and post-placement, were taken with a culpability that
shocks the conscience.
In addition, some of these purported
actions were not actually actions at all.
acknowledges the plaintiff‘s argument that the nonactions still
have some relevance as to foreseeability, but the case law is
clear that nonactions cannot be ―brought within the scope of the
state-created danger doctrine by pointing to an affirmative
action of the state which preceded it.‖
Bright, 443 F.3d at
284; see also Walter v. Pike Cnty., 544 F.3d at 196.
Taking all of the District acts together, the District
did not ―create‖ the harm that was subsequently, and quite
tragically, suffered by John Doe.
The Court does not find a
basis for District liability under the state-created danger
For all of these reasons, the Court grants the
defendant Garnet Valley School District‘s motion for summary
Pathway‘s Motion for Partial Summary Judgment
The plaintiff‘s cause of action against the defendant
Pathway School sounds in negligence, but she also seeks punitive
damages related to these acts of negligence.
Am. Compl. at ¶
In its motion for partial summary judgment, Pathway
School argues that the plaintiff has not put forth sufficient
facts on which a reasonable jury would award punitive damages.
In Pennsylvania, the imposition of punitive damages is
governed by the Restatement (Second) of Torts § 908.
ex rel. Hutchison v. Luddy, 582 Pa. 114, 120 (2005).
Restatement (Second), punitive damages may be awarded for
conduct that is outrageous because of the defendant‘s 1) evil
motive or 2) reckless indifference to others.
(Second) of Torts § 908 (2).
The plaintiff does not need to
prove actual knowledge to assert a claim for punitive damages;
the relevant standard is reckless indifference.
Reckless indifference is defined as ―knowing or having
reason to know of facts which would lead a reasonable man to
realize, not only that his conduct creates an unreasonable risk
of physical harm to another, but also that such risk is
substantially greater than that which is necessary to make his
Restatement (Second) of Torts § 500.
Pennsylvania law, such conduct involves an actor having
knowledge, or reason to have knowledge, of facts which create a
high degree of risk of physical harm to another, and
deliberately proceeds to act (or fail to act) in conscious
disregard of or indifference to that risk.
Id. at cmt. a;
Hutchison, 582 Pa. at 122, n.7.
In assessing punitive damages, the factfinder should
consider the character of the defendant‘s act, the nature and
extent of the harm to the plaintiff that the defendant caused,
and the wealth of the defendant.
Restatement (Second) § 908(2).
Punitive damages may not be awarded for mere inadvertence,
mistake, or errors of judgment.
Id. at cmt. b.
After examining the evidence on the record in its
entirety, the Court finds that the plaintiff has put forth
sufficient facts to support a finding of Pathway School‘s
reckless indifference to John Doe‘s safety.
These facts relate
to violations of school policies, the physical circumstances
surrounding the sexual acts, and Pathway‘s understanding of the
behaviors of John Doe and T.Y.
Of particular note is the fact
that T.Y.‘s disciplinary record reflected over one hundred
discipline citations, including incidents of a sexual nature and
In addition, many of the sexual encounters
occurred over a period of up to thirty minutes and took place in
a bathroom located a few feet away from John Doe‘s classroom.
Finally, under the Restatement (Second), the
factfinder can consider the character of the defendant‘s act,
the nature and extent of the harm to the plaintiff that the
defendant caused, and the wealth of the defendant. Restatement
(Second) § 908(2).
Given the facts on the record, a jury could
reasonably find that the character of the defendant‘s acts were
worthy of punishment and that the nature of harm to the
plaintiff is serious and permanent.
The Court holds that there
is a genuine issue of material fact as to whether Pathway
demonstrated reckless indifference in its supervision of John
Doe and T.Y., and as such this claim should proceed to a jury.
In conclusion, the Court grants the defendant Garnet
Valley School District‘s motion for summary judgment.
plaintiff‘s contention that the District‘s actions give rise to
a state-created danger claim fails as a matter of law.
because the Court has found sufficient evidence to support the
plaintiff‘s claim for punitive damages against Pathway School,
the Court denies the defendant Pathway School‘s motion for
partial summary judgment.
An appropriate order shall issue separately.
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