DOE et al v. SOUTHEAST DELCO SCHOOL DISTRICT et al

Filing 26

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 10/13/15. 10/13/15 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN AND JANE DOE, in their own right
:
and as parents and natural guardians of L. Doe, :
a minor,
:
:
and
:
:
WILLIAM AND MARY ROE,
:
in their own right and as parents and
:
natural guardians of A. Roe, a minor,
:
Plaintiffs,
:
:
v.
:
:
SOUTHEAST DELCO SCHOOL DISTRICT, :
STEPHEN D. BUTZ, Superintendent,
:
JEFFREY RYAN, Assistant Superintendent,
:
MICHAEL A. P. JORDAN, and
:
PAUL F. HOCSHWENDER,
:
Defendants.
:

MCHUGH, J.

CIVIL ACTION
No. 15-901

October 13, 2015
MEMORANDUM

This case involves the right of children to be free from sexual abuse at the hands of their
teachers when attending public school. Children allegedly victimized by their teacher’s sexual
touching and the victims’ parents have sued employees of the school district where the abuse
took place as well as the school district itself. The suit alleges that the minor Plaintiffs’ teacher
(Paul Hochschwender), school principal (Michael Jordan), district assistant superintendent
(Jeffrey Ryan), district superintendent (Stephen Butz), and the school district itself (Southeast
Delco School District) violated the Plaintiffs’ Federal Constitutional rights under the Fourteenth
Amendment, as well as statutory rights conferred by Title IX, 20 U.S.C. §§ 1681–88.

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Defendants Southeast Delco School District, Superintendent Butz, and Assistant
Superintendent Ryan challenge the sufficiency of all of Plaintiffs’ claims against them. For the
reasons that follow, Defendants’ Motion to Dismiss shall be denied, except as to Plaintiffs’ statecreated danger claim in Count III of the Complaint against Defendant Butz and the District.
I. The Facts Alleged
Plaintiffs allege that Defendant Paul Hochshwender was an elementary school teacher.
Before teaching at Darby Township School, he taught at another school for several years. At this
school, he was investigated for complaints of inappropriate touching of his students. He resigned
after this investigation, but he was rehired several years later as a fifth-grade teacher at Darby
Township School (“Darby”). Over several years, multiple female fifth-grade students
complained to Darby’s principal about inappropriate touching. According to the Complaint, the
first time a student and her mother brought a complaint to the principal, no school officials took
any action. In the 2011–12 school year, another Hochschwender student raised a complaint of
inappropriate touching to then-principal Jordan. Jordan reported the second complaint to the
school district’s assistant superintendent, Ryan. Ryan is alleged to have transferred
Hochschwender to teach second grade where he inappropriately touched the minor Plaintiffs.
According to the Complaint, Hochschwender has since been charged with offenses that include
“indecent assault, institutional sexual assault, and corruption of minors,” and he has pleaded nolo
contendere. Complaint at ¶ 31. At the Motion to Dismiss stage, I assume the allegations in
Plaintiffs’ Complaint are true.
II. Standard of review
Fowler establishes this circuit’s test under Fed. R. Civ. P. 12(b)(6). First, the court must
separate the factual and legal elements of the claim. Fowler v. UPMC Shadyside, 578 F.3d 203,

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210 (3d Cir. 2009). Second, accepting the Complaint’s factual allegations as true, the court must
decide whether the plaintiffs have alleged facts that show they are entitled to relief. Id.
III.

Discussion
Plaintiffs assert six counts against all the Defendants in this case, but only Counts II, III,

and IV involve the moving Defendants. Counts I and V relate only to the teacher accused of
abusing the minor Plaintiffs. Count II, a Monell claim, alleges that the District and
Superintendent Butz created and maintained policies and practices that caused violations of
Plaintiffs’ constitutional and statutory rights. Count III, a state-created danger claim, alleges the
District, Superintendent Butz, Assistant Superintendent Ryan, and Principal Jordan placed the
minor Plaintiffs’ in danger of being inappropriately touched by Hochschwender. Count IV, a
statutory claim, alleges that the District unlawfully discriminated against the female minor
Plaintiffs in violation of Title IX.
Defendants first argue that Counts II and III must be dismissed as to Superintendent Butz
because the Complaint does not allege he had any personal involvement in the abuse. A
government official cannot be personally liable under 42 U.S.C. § 1983 without personal
involvement in a violation of a plaintiff’s rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988). Plaintiffs counter that Butz is sued in his official capacity as a policymaker for
the District, rather than for his personal involvement in abuse. Pl. Opp. to Mot. to Dismiss. at 2
(Butz “is thus sued under a Monell theory”). A claim against a person acting in his official
policymaking capacity “is, in all respects other than name, to be treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Snatchko v. Peters Twp., 2012 WL
6761369 at *11 (W.D. Pa. Dec. 28, 2012). Because an official capacity suit is a suit against the
municipality, the claim does not depend on the personal involvement of the policymaking

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official in the alleged constitutional violations. Here, because Butz is sued only in his official
capacity for his actions as a policymaking official, Plaintiffs do not need to show he was
personally involved in causing or acquiescing to the minor Plaintiffs’ abuse.
Defendants next argue that Plaintiffs improperly seek to impose liability under § 1983 on
the basis of respondeat superior because all of Plaintiffs’ claims arise from Hochschwender’s
misconduct, and Defendants cannot be vicariously liable as his supervisors and employer. This
mischaracterizes Plaintiffs’ claims. Plaintiffs are not asserting respondeat superior liability
against Defendants. Rather, they are asserting well-established direct Constitutional and
statutory claims under 42 U.S.C. § 1983, the Fourteenth Amendment, and Title IX, premised
upon Defendants’ own conduct.
Next, Defendants contend that Plaintiffs’ Monell claim against Butz must fail because
Butz, as Superintendent, does not exercise final policymaking authority. See City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988). I am satisfied that under Pennsylvania law, the
superintendent has final policymaking authority for the specific supervisory decisions at issue
here. It is true that the school board, not the superintendent, has final decision-making authority
over the dismissal of teachers. Pa. Con. Stat. § 5-508. However, the Third Circuit has explained
that final authority over teachers’ dismissal does not equate to final authority over all duties
related to the supervision of teachers. McGreevy v. Stroup, 413 F.3d 359, 368–69 (3d Cir. 2005)
(superintendent was final decision-maker for teacher ratings). Defendants recognize that it is
within the superintendent’s statutory authority “to note the courses and methods of instruction
and branches taught, [and] to give such directions in the art and methods of teaching in each
school as he deems expedient and necessary.” 24 P.S. § 10-1081. Pennsylvania law further
recognizes that superintendents have the authority to monitor, investigate, and direct teachers’

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conduct in school. It is broader decisions, such as termination, that are restricted to the school
board. As I read the Complaint, Plaintiffs’ claims against Butz are directed at decisions over
which he had policymaking authority.
Defendants maintain that Plaintiffs’ claims against Butz and Ryan must be dismissed
because they are duplicative of the claim against the District. Official capacity claims against
municipal officers are essentially claims directly against the municipality itself. Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (“an official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity.”). As a result, in the Third Circuit, some courts dismiss
these redundant claims. Moore v. City of Philadelphia, No. 14-133, 2014 WL 859322 at *3
(E.D. Pa. March 5, 2015) (discussing debate in Third Circuit district courts over whether to
dismiss redundant § 1983 claims). Dismissal is not required, however and because “a plaintiff is
master of his or her complaint,” I will not presume to prune the Complaint Plaintiffs have filed.
United Jersey Banks v. Parell, 783 F.2d 360, 368 (3d Cir. 1986).
Defendants then contend that Plaintiffs’ Monell claim against the District and Butz is
insufficient in three respects, in that Plaintiffs failed to allege the existence of: (1) a municipal
policy or custom; (2) a pattern of constitutional violations by Defendants; and (3) a causal
relationship between the municipal policy or custom alleged and the constitutional violation
Plaintiffs challenge. Defendants are correct that a plaintiff pursuing Monell liability must
“identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of County
Com’rs of Bryan County Okl. v. Brown, 520 U.S. 397, 403 (1997). When, as here, a plaintiff
asserts a municipality’s failure to train and discipline its employees caused the plaintiff’s injuries
instead of an explicit policy, the plaintiff must show that the municipality’s “failure to train
reflects deliberate indifference to the constitutional rights of its inhabitants.” City of Canton,

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Ohio v. Harris, 489 U.S. 378, 392 (1989). Justice O’Connor, concurring in City of Canton,
suggested a plaintiff might show “deliberate indifference” in two ways. A plaintiff may, as
Defendants note, show “that policymakers were aware of, and acquiesced in, a pattern of
constitutional violations…” Id. at 397 (O’Connor, concurring in part and dissenting in part). A
plaintiff may also show “that a municipality has failed to train its employees to handle recurring
situations presenting an obvious potential for such a violation…” Bryan County, 520 U.S. at 409.
Here, Plaintiffs have alleged the superintendent, Butz, acting on behalf of the District,
failed to direct and train school officials to appropriately respond to sexual abuse allegations
against a school employee. Pointing to Pennsylvania’s mandatory reporting laws, Plaintiffs
make it clear that Defendants knew of the need to protect students from sexual abuse at the hands
of school employees. Yet despite knowledge of the need to act to prevent abuse and knowledge
of abuse allegations, school officials following the school’s established custom of inaction
repeatedly failed to act to protect students. Plaintiffs argue the District’s failure to implement
more rigorous training and oversight amounts to deliberate indifference that caused Plaintiffs’
constitutional injuries. Whether Plaintiffs are able to produce evidence of such a policy or
custom and its effects will be resolved at a later stage of this litigation, but I agree that Plaintiffs
have sufficiently stated the required elements of their Monell claim.
Defendants then argue Plaintiffs’ Fourteenth Amendment claim of a “state-created
danger” is insufficient. Although the Fourteenth Amendment does not generally guarantee an
“affirmative right to governmental aid or protection,” an exception exists when state actors create
a danger that causes a victim harm. Ye v. United States, 484 F.3d 634, 636 (3d Cir. 2007).
Under Bright v. Westmoreland County, a state-created-danger claim has the following elements:
(1) “the harm ultimately caused was foreseeable and fairly direct;”
(2) a state actor acted with a degree of culpability that shocks the conscience;
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(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 citizens or that rendered the citizen more vulnerable to danger
than had the state not acted at all.
443 F.3d 276, 281 (3d Cir. 2006). Plaintiffs here allege that Defendants, by failing to adequately
report, supervise, or discipline Defendant Hochschwender, placed the minor Plaintiffs at risk of
the abuse they suffered. Defendants counter that the harm Plaintiffs suffered was not foreseeable
and that Defendants’ conduct did not “shock the conscience.”
The required elements of the state-created danger claim are clearly met as to Defendant
Ryan. Plaintiffs have asserted Ryan learned of allegations of abuse and transferred
Hochschwender to teach younger students, without sufficient safeguards to prevent further harm
to children. It is entirely foreseeable that such an ill-considered transfer could lead to more
abuse of students, and a reasonable jury could certainly find that exposing even more vulnerable
students to the risk of abuse at the hands of a teacher is shocking.
As to Butz and the District, however, Plaintiffs allege only that they maintained a policy
or custom that led to Plaintiffs’ injuries. Plaintiffs have not alleged Butz and the District were
personally involved in causing Plaintiffs’ injury. See Rode, 845 F.2d at 1207; Sanford v. Stiles,
456 F.3d 298, 314 (3d Cir. 2006) (“a municipality may be held liable only if its policy or custom
is the ‘moving force’ behind a constitutional violation”). Accordingly, they are not proper
defendants for the state-created danger claim.
Defendants then seek the dismissal of Count IV, which alleges a violation of Title IX. To
prevail on such a claim, a plaintiff must show that at a federally funded school, a student was
subjected to discrimination based on her sex, and an appropriate person had actual notice of the
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discrimination but was deliberately indifferent to it. Gebser v. Lago Vista Independent School
Dist., 524 U.S. 274, 290 (1998). Defendants argue that Plaintiffs failed to allege facts showing
an “appropriate person” had notice of the abuse in this case. This argument overlooks Plaintiffs’
allegations that Defendant Ryan was informed of the accusations. “An ‘appropriate person’ …
is, at minimum, an official of the recipient entity with authority to take corrective action to end
the discrimination.” Id. Whether a person is an “appropriate person” does not simply depend on
his job title. Rather, designation under Title IX as an “appropriate person” depends on the
individual’s actual authority to end the discrimination. Warren ex rel. Good v. Reading School
Dist., 278 F.3d 163, 172 (3d Cir. 2002) (holding a principal was an “appropriate person” based
on testimony “she was in charge of every aspect of daily operations … including supervision and
discipline of the teachers of the school.”). Under the facts alleged, Defendant Ryan, as assistant
superintendent, apparently had discretion to discipline teachers, at least up to transferring them
from a classroom. Plaintiffs have therefore alleged that an “appropriate person” had actual
knowledge of the abuse by Hochschwender. Additional development of the record as this
litigation progresses will show whether Ryan was in fact an “appropriate person.”
Finally, Defendants seek the dismissal of claims against Butz and Ryan pursuant to
qualified immunity. Qualified immunity shields government employees sued in their personal
capacities from liability unless their conduct violates “clearly established statutory or
constitutional rights … which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). With respect to Superintendent Butz, Plaintiffs have sued him only
for his official acts as a policymaker for the District. Therefore, qualified immunity is not
available as a defense for Butz, just as it would not constitute a defense for the District. Graham,
473 U.S. at 166.

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Qualified immunity will protect Assistant Superintendent Ryan if Plaintiffs have failed to
allege he violated their constitutional rights or if Plaintiffs have alleged a violation of a right that
was not clearly established at time of the conduct in question. Reedy v. Evanson, 615 F.3d 197,
223–24 (3d Cir. 2010) (explaining the two-step analysis of qualified immunity). As I discuss
above, Plaintiffs have stated a claim that Ryan violated minor Plaintiffs’ rights by exposing them
to a foreseeable danger of abuse by Hochschwender. The remaining question is whether
Plaintiffs’ right not to be abused by Hochschwender was clearly established.
I have little difficulty in concluding that it was. “A right is clearly established if ‘it would
be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ”
Id. (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)). Should a reasonable school official know
that exposing young children to a risk of molestation violates their rights? To ask the question is
to answer it. To the extent that the peculiar jurisprudence of qualified immunity requires judicial
confirmation of what strikes me as self-evident, the Court of Appeals supplied it in Stoneking v.
Bradford Area School Dist., 882 F.2d 720, 727 (3d Cir. 1989). In Stoneking, the Third Circuit
recognized that students have a clearly established right not to be sexually abused by their
teachers, and that supervising school officials clearly violate students’ rights if their conduct
somehow approves of or assists the abuser’s actions. Id. Specifically, the Court held that “it was
clearly established law that … officials may not with impunity maintain a custom, practice or
usage that communicated condonation or authorization of assaultive behavior.” Id. at 730. It
then denied immunity to two defendants who “discouraged and minimized reports of sexual
misconduct by teachers.” Id. Stoneking drew a distinction between “the mere failure of
supervisory officials to act or investigate,” and “affirmative acts” which support a finding of
“toleration, condonation or encouragement of sexual harassment by teachers.” Id. at 731.

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The claim against Assistant Superintendent Ryan does not allege merely “indefensible
passivity” where qualified immunity might protect an indolent school official. D.R. by L.R. v.
Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1376 (3d Cir. 1992) (plaintiffs
failed to allege state-created danger claim based on school officials’ failure to prevent abuse). If
allegations before me are believed, a jury could decide that Ryan’s actions transferring
Hochschwender to teach younger students were “encourag[ing] a climate to flourish where
innocent girls were victimized.” Id. at 730. I see no uncertainty over the rights of school
children to be protected from deliberate exposure to an abusive teacher, but to the extent there
could be any, it was resolved by Stoneking.
IV.

Conclusion
For the foregoing reasons, the Motion to Dismiss of Defendants Southeast Delco School

District; Stephen D. Butz, Superintendent; and Jeffrey Ryan, Assistant Superintendent shall be
denied, except as to Plaintiff’s state-created danger claim in Count III of the Complaint against
Defendant Butz and the District. An appropriate order follows.

/s/ Gerald Austin McHugh
United States District Court Judge

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