MGJ et al v. SCHOOL DISTRICT OF PHILADELPHIA et al

Filing 23

MEMORANDUM. SIGNED BY HONORABLE MARK A. KEARNEY ON 5/25/2017. 5/25/2017 ENTERED AND COPIES E-MAILED.(amas)

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

MGJ, et al.
v.
SCHOOL DISTRICT OF
PHILADELPHIA, et al.

: CIVIL ACTION
:
: NO. 17-318
:
:
:

KEARNEY, J.

May 25, 2017
MEMORANDUM

Courts must sift through a maze of difficult issues when a student in public high school
allegedly sexually assaults an intellectually disabled student. A mother sending her intellectually
disabled daughter to public high school relies upon the school district to provide an appropriate
public education and protect her from known sexually motivated co-students during school
hours. The school district’s efforts can be supplemented by private non-profit organizations to
monitoring her daughter for a defined number of hours a week. Under federal law, the disabled
student’s challenges to the public school district’s educational services are brought in an
administrative due process hearing and possibly resolved through compensatory education and
adjustments in the student’s educational plan. This administrative process can also address steps
to protect the disabled student’s security moving forward.

But these administrative steps

required to be exhausted before filing suit do not always offer the full remedies potentially
available under federal civil rights statutes and state law.
Today, we study an intellectually challenged young lady’s claims for damages under
federal and Pennsylvania law arising from an alleged sexual assault by another student during an
allegedly unsupervised lunch break at her public school.

The wrinkle is the young lady

exhausted her administrative remedies by settling her challenge to the school district’s services
in exchange for a limited release but now sues the district and a non-profit private provider of a
recently limited number of service hours. Upon review of the district’s and private provider’s
motions, we interpret the limited release on a summary judgment standard to dismiss the
specifically identified claims in the limited release but not the remaining unidentified claims.
Beyond the release, we find many of her plead claims cannot survive motions to dismiss. In the
accompanying Order, we grant the district’s and private provider’s motions in part with leave to
amend to plead facts under Rule 11 possibly stating a supervisory liability civil rights claim
against the District.
I.

Facts alleged in the Complaint.
MGJ is a teenage student in the Philadelphia School District challenged with intellectual

disabilities and autism.1 MGJ’s disabilities made her vulnerable to peer-to-peer pressure because
she is “not able to say no” and is not “aware of how to handle” sexually charged peer-to-peer
situations.2 She tends to elope from situations and requires frequent redirection.3 Princess J is
MGJ’s parent and legal guardian.4 As alleged, MGJ “was under the direct supervision and
custody of” the District, its employees, and Carson Valley Children’s Aid.5
Carson Valley allegedly receives federal funding and employed a therapeutic support
staff (“TSS”) worker to provide one-on-one supervision services and life-skills training to MGJ
because of her disabilities.6 Carson Valley provided these services under a contract with the
District, and its services to the District were integral to the public education system, purportedly
rendering it a “public entity” and an “instrumentality” of the District and the state.7

2

Carson Valley originally provided 38.5 hours of TSS services per week.8

For

unexplained reasons, during the 2015–2016 school year, Carson Valley’s TSS services “were
reduced” to only three hours per day, which excluded unstructured times such as lunch.9
A. Another student sexually assaults MGJ at school during lunch.
In 2016, fifteen-year-old MGJ attended Swenson Arts and Technology High School in
Philadelphia.10 On February 18, 2016, during lunch, another student approached MGJ while
unsupervised and lured her outside through an unlocked door in the lunchroom.11

School

officials did not properly supervise the exit.12 Once outside, the student removed MGJ’s pants
and underwear and sexually assaulted MGJ.13
After the assault, MGJ never returned to Swenson, and she missed four months of
school.14 When Extended School Year services began in the summer following the assault, the
District placed the assailant in the same classroom as MGJ.15 MGJ ultimately transferred to a
more restrictive school setting further from her home.16
B. Earlier instances of students’ sexual misbehavior at the school.
According to MGJ, the District knew about the assailant’s sexually exploitative
tendencies at the time the District and its employees placed her in the same room with the
assailant on February 18, 2016 without supervision because Ms. J had complained about the
assailant attempting to seduce MGJ on previous occasions.17 During the 2014–2015 school year,
MGJ told Ms. J the assailant showed her his penis and tried to have her touch it.18 Ms. J reported
this conduct to MGJ’s teacher Lisa Lynch, who admitted seeing “something going on” but did
not know what.19 In January 2016, MGJ told Ms. J she saw other students in her program
inappropriately touching and showing genitals in the library.20 Ms. J reported this information to
Ms. Lynch, who responded, “Wow. I can’t believe she told you that.”21

3

As alleged, the District, Carson Valley, and District employees knew about “sexually
inappropriate actions of students in MGJ’s program” during the 2014–2015 school year, and
knew specifically about the actions of MGJ’s assailant, but “actively attempted to conceal” the
students’ sexually inappropriate behavior from the parents.22

District employees Ms. Lynch,

Principal Collette Langston, and Special Education Director Jodi Roseman also knew MGJ
endured sexual harassment, and they were substantially certain MGJ would continue to be
assaulted or harassed if they did not intervene.23 Nonetheless, they allegedly failed to prevent
the assault despite having the opportunity to intervene.24 They also failed to take “appropriate
preventative and remedial actions” with respect to the sexual assault and harassment of MGJ.25
Shortly after the alleged sexual assault, Carson Valley issued a Comprehensive
Biopsychological Re-Evaluation of MGJ.26

The report stated MGJ “continues to exhibit

elopement risk and concerns” requiring a “support system and prompting/redirection” in the
school setting.27 The report stated MGJ’s elopement behaviors “is seen daily, moderate to severe
in intensity, and present for several years.”28
MGJ alleges Carson Valley should have provided TSS services at the time of the
assault.29 MGJ does not allege facts regarding Carson Valley’s control over the perpetrator or
over the environment in which sexual assault/misconduct took place. All of the alleged sexual
misconduct occurred at Swenson High School, not on the premises of Carson Valley.
MGJ does not allege facts as to who decided to place MGJ in an unsupervised setting
with her known alleged assailant, but alleges “Defendants” used their authority to place MGJ in a
position making her vulnerable to a known risk of harm.30

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C. Ms. J filed a Due Process Complaint with the District, resulting in a settlement
agreement.
On July 19, 2016, Ms. J filed a Due Process Complaint against the District with the
Pennsylvania Office for Dispute Resolution alleging, among other things, the District violated
the Rehabilitation Act31 and failed to provide a free and appropriate education under the
Individuals with Disabilities Education Act (“IDEA”).32 These proceedings resolved through a
September 27, 2016 “Settlement Agreement and Specific Release,” providing:
1. RELEASE BY PARENT: Parent, individually and on behalf of
[student] for and in consideration of the mutual promises and terms
set forth in this Settlement Agreement and Specific Release and
other valuable consideration, hereby unconditionally releases and
forever discharges the District, its past and present officers,
employees, agents, servants and attorneys, the Board of Public
Education, the School Reform Commission, their heirs, executors
and administrators, successors and assigns (“Releasees”) of and
from the Released Claims (as defined herein).
2. CLAIMS RELEASED: It is expressly understood and mutually
agreed that this Confidential Settlement Agreement and Specific
Release are intended to resolve all actions, causes of action, suits,
claims, losses, injuries, damages and demands whatsoever, in law
or equity, known or unknown, accrued or not accrued, that Parent,
individually and on behalf of [student] may have or may ever have
had since the beginning of time through the date of this
Agreement, including all claims for tuition reimbursement,
attorney fees and costs, expert fees and/or compensatory education,
in each case relating to the education of [student] or the provision
(or denial) to her of a free appropriate public education, and arising
under and pursuant to the Individuals with Disabilities Education
Act, 20 U.S.C. §1400 et seq. (“IDEA”), and its implementing
regulations, 34 C.F.R. Part 300; and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing
regulation, 34 C.F.R. Part 104; the Pennsylvania Public School
Code of 1949, as amended, 24 P.S. § 951 et seq.; Chapters 14 and
15 of the Regulations of the State Board of Education, 22 Pa. Code
Ch. 14 & 15 (collectively, the “Released Claims”).33
As part of the settlement, the District agreed to pay reasonable attorney’s fees and costs
to Joseph Montgomery, Esq., “for time expended and costs on this matter to the date of this
5

Agreement.”34 The release carved out an exception for this claim, providing “[n]othing in this
Agreement shall be construed as a release by Parent of . . . any claims relating to the enforcement
of this Agreement.”35

Despite this agreement to pay fees, the District did not pay Mr.

Montgomery’s fees.36
MGJ, by and through her parent Ms. J, then sued the District, school district employees
Ms. Langston, Ms. Roseman, Ms. Lynch, as well as Carson Valley and John Does 1 through
10.37

MGJ sued the District and Carson Valley for violating Title IX of the Education

Amendments of 1972.38 She sued all Defendants for claims of state-created harm under 42
U.S.C. § 1983, §1983 failure to train or supervise, intentional infliction of emotional distress,
failure to accommodate under Title II of the Americans with Disabilities Act (“ADA”), 39 and
violations of section 504 of the Rehabilitation Act.40 MGJ also sued Carson Valley, Mrs.
Langston, Ms. Roseman, and Ms. Lynch for negligence, and claims the District, Mrs. Langston,
Ms. Roseman, and Ms. Lynch breached fiduciary duties. Lastly, she sued the District under the
IDEA for breach of contract arising from the District’s failure to pay reasonable attorney’s fees.
II. Analysis
Defendants move to dismiss, arguing MGJ released her claims on September 27, 2016
and fails to state a claim to which relief can be granted.41 The District and the individual District
Defendants attached a portion of this settlement agreement to their response.42 Carson Valley
joined in the District’s motion, arguing the release also bars MGJ’s claims against Carson
Valley.43

Having provided notice, we exercise our discretion under Federal Rule of Civil

Procedure 12(d) to convert Defendants’ motions to dismiss to motions for summary judgment
under Rule 56, but only as to the noticed issues of Defendants’ affirmative defense of release,
and we allowed the parties to submit additional materials pertinent to this issue. 44

6

MGJ

submitted an affidavit from her attorney Zachary Meinen, swearing he had multiple
communications with the District over the course of drafting this settlement agreement and at no
time did the District’s General Counsel assert or imply this settlement agreement barred MGJ’s
present claims about the District.45 Attorney Meinen swears the settlement agreement is not a
general release, but “a limited, special release of [free appropriate public education]-related
claims of Plaintiffs under specified federal and state statutes and regulations.”46
We grant in part Defendants’ motions and dismiss the Rehabilitation Act claims against
the District, the individual District Defendants (Ms. Roseman, Ms. Langston, and Ms. Lynch),
and Carson Valley as barred by the release. We dismiss all §1983 claims against the individual
District Defendants and the District. We dismiss as duplicative Title II ADA official capacity
claims against the individual District Defendants. We dismiss MGJ’s negligence claims against
the individual District Defendants as barred by statutory immunity. We dismiss the Title II ADA
claim against Carson Valley because it is not a public entity. We also dismiss all §1983 claims
against Carson Valley because it is not a state actor. We dismiss the Title IX claim against
Carson Valley because it lacked substantial control over the harassment and environment in
which the harassment occurred.
MGJ may proceed on her IDEA breach of contract, Title IX, ADA, and state law claims
against the District. She may also proceed on her state law claims except negligence against the
individual District Defendants. MGJ may proceed against Carson Valley on her state law claims.
A. The release bars some, but not all, of MGJ’s claims against Defendants.
MGJ’s release does not bar all of her claims. Under Pennsylvania law, we interpret
general releases by the rules of contract construction.47 We interpret unambiguous releases as a
matter of law.48 When construing a release, our goal is to “give effect to the intentions of the

7

parties”49 based on the “ordinary meaning” of the release’s language.50 “[A] release covers only
those matters which may fairly be said to have been within the contemplation of the parties when
the release was given.”51 A party’s subjective intent is irrelevant, and absent fraud, accident, or
mutual mistake, the language of the agreement controls.52 “[A] party cannot avoid the clear
language of a release by stating that he or she did not intend to release a particular claim.”53 Our
role is to look within the “four corners” of the agreement to determine whether the agreement is
unambiguous, i.e. subject to only one reasonable interpretation.54
i. MGJ released her claim under Section 504 of the Rehabilitation Act
against the District and individual District Defendants.
MGJ and the District agreed to a specific release. The agreement itself is labeled a
“Specific Release” which encompasses “all . . . claims . . . that Parent, individually and on behalf
of [student] may have or may ever have had since the beginning of time through the date of this
Agreement, including all claims for tuition reimbursement, attorney fees and costs, expert fees
and/or compensatory education, in each case relating to the education of [student] or the
provision (or denial) to her of a free appropriate public education, and arising under” certain
identified state and federal statutes and regulations.55 The clause beginning with “including” is a
nonrestrictive relative clause, separated by commas, which neither expands nor limits the scope
of released claims. This clause is not essential to the meaning of the rest of the sentence.
We read the release as though the superfluous nonrestrictive clause were omitted. The
release narrowly encompasses: (a) all claims which have or could have been brought before the
date of the Agreement; (b) in each case (i.e. instance) relating to MGJ’s education or free
appropriate public education; and (c) arising under and pursuant to one of the identified statutes
or regulations.

This release is unambiguous in terms of the claims released.

It does not

encompass claims under Title IX, §1983, or the Americans with Disabilities Act.
8

And it

specifically carves out the MGJ’s breach of contract claim based on the nonpayment of
attorney’s fees, as claims “relating to the enforcement of this Agreement” are not released.56 But
because the release specifically releases claims under Section 504 of the Rehabilitation Act
relating to her education, we find MGJ released her claim against the District under Section 504
of the Rehabilitation. As the release encompasses both the District and its agents/employees,
MGJ also released her claims against the individual District Defendants under Section 504 of the
Rehabilitation Act.57
Defendants’ reading of the release is overbroad. They read the release as encompassing
all “damages . . . relating to the education of” MJG, and contend the term “damages” necessarily
refers to damages actions under §1983.

This reading is too narrow.

First, damages are

recoverable under the released IDEA and the Rehabilitation Act claims, so the reference to
damages does not require a broader reading of the release to include other damages claims.
Second, a released claim is not merely a claim “relating to the education” of MGJ, but must
satisfy two conditions: a released claim must be a claim (1) “relating to the education of [MGJ]
or the provision (or denial) to her of a free appropriate public education, and [(2)] arising under
and pursuant to” one of the identified statutes or regulations.58 Defendants read the release as if
“and” means “or,” but this construction ignores the syntax of the first condition, which includes
claims both “relating to the education or the provision (or denial) to her of a free appropriate
public education.”59 Defendants’ reading of the release does not give proper weight to the two
specified conditions.
ii. MGJ concedes Carson Valley is covered by the release, so her claim
against it under Section 504 of the Rehabilitation Act is released.
At oral argument, MGJ conceded Carson Valley is covered by the release. This is
consistent with Carson Valley’s position it is covered by the release, which applies to “the
9

District, its past and present officers, employees, agents, servants and attorneys, the Board of
Public Education, the School Reform Commission, their heirs, executors and administrators,
successors and assigns.”60 We accordingly dismiss the Rehabilitation Act claim against Carson
Valley as released per MGJ’s concession.
B. Federal law claims against the District and individual District Defendants.
i. We dismiss MGJ’s §1983 state-created danger claims against the
District and individual District Defendants.
At oral argument, MGJ conceded she only pleads §1983 official capacity claims against
the individual District Defendants, which she also conceded are duplicative of her §1983 claim
against the District. Because “[o]fficial-capacity suits are an alternative way to plead actions
against entities for which an officer is an agent,” we dismiss these official capacity claims as
duplicative of her §1983 municipal liability claim against the District.61
In her Complaint, MGJ claims the District is directly liable under the state-created danger
doctrine. Although individuals are subject to liability under the state-created danger doctrine, the
District cannot be held liable under this doctrine.

Our court of appeals has not squarely

addressed whether a municipality is directly liable under the state-created danger doctrine. The
general consensus among the district courts in our circuit is “proving a constitutional violation of
state actors under the state-created danger doctrine by itself is not enough to implicate municipal
liability.”62 Rather, courts agree a municipality is liable only to the extent its policies or customs
proximately cause a constitutional violation, which MGJ also alleges against the District.63 We
agree and dismiss MGJ’s state-created danger claim against the District.

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ii. We dismiss MGJ’s claim against the District for municipal liability
under § 1983.
Defendants argue MGJ’s claim for municipal liability against the District must be
dismissed because MGJ failed to plead facts demonstrating a violation of her constitutional
rights under the state-created danger doctrine. We disagree, but dismiss her municipal liability
claim against the District for failure to identify specific training or supervision having a causal
connection to the violation of her constitutional rights.
In Monell, the Supreme Court held a municipality may be liable under §1983 when its
policy or custom causes the constitutional violation.64 To succeed on a Monell claim, MGJ must
establish: “(1) she possessed a constitutional right of which she was deprived; (2) the
municipality had a policy [or custom]; (3) the policy [or custom] ‘amounted to deliberate
indifference’ to her constitutional right; and (4) the policy [or custom] was the ‘moving force
behind the constitutional violation.’”65
1. MGJ pleads the violation of a constitutional right.
We first find MGJ establishes a violation of a constitutional right under the state-created
danger doctrine. “[P]ublic schools, as a general matter, do not have a constitutional duty to
protect students from private actors.”66 Nonetheless, MGJ may establish a duty by showing state
actors “created or exacerbated a dangerous situation” thereby depriving her of her Fourteenth
Amendment right to substantive due process under the state created danger doctrine.67 To state a
claim under the state-created danger doctrine, MGJ must allege:
1. the harm ultimately caused 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
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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.68
The individual District Defendants argue MGJ does not satisfy the fourth element’s
requirement they “affirmatively” used their authority to place MGJ in a dangerous situation.
Regarding the fourth element, our court of appeals explained “liability under the state-created
danger theory is predicated upon the states’ affirmative acts which work to the plaintiffs’
detriments in terms of exposure to danger.”69 Courts frequently acknowledge the “inherent
difficulty in drawing a line between an affirmative act and a failure to act” because “virtually any
action may be characterized as a failure to take some alternative action.”70
Even so, the Supreme Court and our court of appeals has drawn the line on a number of
occasions. The seminal case is Deshaney, in which the Supreme Court held for the first time “a
State’s failure to protect an individual against private violence does not constitute a violation of
the Due Process Clause.”71 In Deshaney, county officials learned about a father’s physical abuse
of his son, resulting in the county temporarily taking custody of the son before releasing him
back to his abusive father.72 Afterward, a county caseworker visited the home monthly and
observed suspicious injuries but did nothing.73 Hospital personnel also notified the caseworker
about suspicious injuries on numerous occasions.74 Tragically, the father beat his son into a lifethreatening coma, causing permanent brain damage.75 The Supreme Court dismissed the claims
against the county and county officials, holding “the State had no constitutional duty to protect
[the son] against his father’s violence,” and their failure to act did not violate the Due Process
Clause.76

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In a case somewhat analogous to ours, our en banc court of appeals held two female
students failed to allege violations of the state created danger doctrine against school officials for
sexual harassment and molestation by other students.77 The plaintiffs alleged male students
molested the female plaintiffs in a unisex bathroom and darkroom which were part of a graphic
arts classroom supervised by a student teacher.78 The teacher experienced difficulty controlling
the class and witnessed nonsexual offensive touching in the classroom.79 The court found
insufficient evidence under the state-created danger doctrine because the school officials’
purported affirmative acts did not foreseeably render the plaintiffs more vulnerable to a sexual
harm: “The school defendants’ ‘acts’ in assigning [a student teacher] to the graphic acts class and
failing to supervise her more closely, as well as their failure to put a stop to the non-sexual
pandemonium” did not create the foreseeable risk of the sexual harm suffered by the plaintiffs. 80
The court explained the “[p]laintiffs’ harm came about solely through the acts of private
persons.”81 In other words, the school defendants did not engage in affirmative acts creating the
foreseeable risk of sexual harm experienced by the plaintiffs.
Similarly, in Morrow v. Balaski, our court of appeals held school officials did not engage
in affirmative acts creating or enhancing a danger to plaintiffs experiencing bullying by another
student.82 The plaintiffs argued the school officials’ affirmative act consisted of its decision to
suspend the bully instead of expelling her and its subsequent decision to permit the bully’s return
to school following the suspension (i.e. failure to expel).83 Our court of appeals rejected this
argument, characterizing it as an attempt “to redefine clearly passive inaction as affirmative
acts.”84 If a “failure to expel” constituted an affirmative act, “every decision by school officials
to use or decline to use their authority, disciplinary or otherwise, would constitute affirmative
conduct that may trigger a duty to protect.”85 Although the suspension constituted an affirmative

13

act, the court disagreed the suspension “created a new danger” for the plaintiffs or “rendered
them more vulnerable to danger than had the state not acted at all.”86
Alternatively, in L.R. v. School District of Philadelphia, our court of appeals held a
teacher’s decision to allow a student to leave school with a stranger (who sexually molested the
student) constituted an affirmative act.87 Rather than focusing on whether to characterize the
teacher’s act as affirmative action or passive inaction, the court asked whether the teacher’s
“exercise of authority resulted in a departure from that status quo.”88 In the classroom context,
the student’s freedom of movement is restricted, and “the teacher acts as gatekeeper.” 89 The
student was safe in her classroom unless and until her teacher . . . permitted her to leave.”90 The
court distinguished the Supreme Court’s decision in Deshaney, explaining the “Supreme Court’s
focus in DeShaney was on the State’s failure to remove [the son] a second time from a situation
it had reason to believe was dangerous, meaning the State’s decision to leave [the son] with his
father was a maintenance of the status quo.”91 The teacher’s act of allowing the stranger to take
his student without showing proper identification “amounted to an affirmative misuse of his
authority” as the student’s teacher and gatekeeper.92
We find sufficient allegations District employees exercised their authority in a manner
resulting in a departure from the status quo.

In the school context, students’ freedom of

movement is subject to the control of school officials. In exercising this authority to control
student movement, school officials are reasonably expected to place students in situations where
they will not be subject to obvious dangers. This is the status quo.
District employees Ms. Lynch, Ms. Langston, and Ms. Roseman allegedly disrupted this
status quo by placing MGJ in the same room as her known assailant. These defendants knew
MGJ endured sexual harassment in the past at the hands of the assailant.93 They placed MGJ in

14

the same room with the assailant, without adequate supervision, despite knowing the assailant
had sexually harassed MGJ in the past. In this context, allowing MGJ to be in the same room as
her assailant without supervision is akin to allowing a student to leave the school with a stranger.
These allegations are sufficient to show the individual District Defendants affirmatively misused
their authority to control student movement.

MGJ accordingly pleads a violation of her

constitutional right to support her failure to train or supervise claim.
2. MGJ does not plead sufficient facts showing the District failed
to provide specific training or supervision having a causal
connection to her injuries.
MGJ does not plead a custom of failing to train or supervise. In certain circumstances,
the unconstitutional custom can consist of a municipality’s failure to train or supervise.94
“Establishing municipal liability on a failure to train claim under § 1983 is difficult. A plaintiff
pressing a § 1983 claim must identify a failure to provide specific training that has a causal
nexus with their injuries.”95 Similarly, “a plaintiff asserting a failure to supervise claim must . . .
identify a specific supervisory practice that the defendant failed to employ.”96 “Mere proof that
an injury could have been avoided if the municipal officer or employee ‘had better or more
training is not enough to show municipal liability’ under a ‘failure to train’ Monell claim.”97
Additionally, merely alleging a failure “to supervise in a way that would have prevented the
alleged violation” is insufficient.98
MGJ alleges three possible bases for the District’s liability for failing to train or
supervise: (1) “[F]ailing to properly train and supervise the District’s employees as to the risks
associated with their action and/or inaction described herein”; (2) “Proper training and
supervision in the areas of sexual harassment, bullying and intimidation could have reduced or
eliminated the harm”; and (3) the District “violated [MGJ]’s constitutional right to bodily

15

integrity by failing to properly screen employees and sub-contracted service providers before
hiring.”99 As to the first basis, MGJ fails to identify specific training or supervision the District
failed to provide. As to the remaining bases, the alleged deficiencies in training and supervision
lack a sufficient causal nexus to her injuries. Training its employees in the areas of sexual
harassment, bullying, and intimidation would not have prevented MGJ’s injury because no
employees were present at the time of the injury. Similarly, screening employees and contractors
would not have prevented the injury because neither employees nor contractors were present at
the time of the alleged assault. Because the District did not require employees or contractors to
be present at the time of the assault, no amount of supervision, screening or training of
employees or contractors would have prevented the alleged assault.
At oral argument, MGJ explained her municipal liability claim against the District is
broader than alleged in the Complaint, encompassing the District’s failure to have a policy
addressing how to handle students after student-on-student sexual harassment occurs. This
claim, however, is not specifically alleged in the Complaint, so we may not consider it at this
time. Nor does MGJ allege a failure to train/supervise claim under the related theory the District
failed to train its employees on how to handle students after student-on-student sexual
harassment occurs.

We accordingly dismiss MGJ’s §1983 failure to train/supervise claim

against the District but grant MGJ leave to amend to plead facts under Rule 11 to possibly state a
supervisory liability claim consistent with Monell.
iii. We dismiss MGJ’s claims under Title II of the ADA and Section 504
of the Rehabilitation Act as to the individual District Defendants.
Defendants argue the ADA and Rehabilitation Act claims against the individual District
Defendants should be dismissed because neither the ADA nor the Rehabilitation Act permit

16

individual liability. MGJ responds such claims are viable because—for the purpose of these
claims—it sues the individual District Defendants in their official capacities.
We dismiss the Rehabilitation Act claims against the individual District Defendants.100
Section 504 of the Rehabilitation Act “prohibits discrimination against any qualified
handicapped individual under ‘any program or activity receiving Federal financial
assistance.’”101 “Congress limited the scope of § 504 to those who actually ‘receive’ federal
financial assistance.”102 Although MGJ alleges the District received federal financial assistance,
she does not allege the individual District Defendants received such aid.
Even if she did plead they received federal aid, the Rehabilitation Act claims against the
individual District Defendants in their official capacities would be duplicative of her
Rehabilitation Act claim against the District. We accordingly dismiss MGJ’s Rehabilitation Act
claims against the individual District Defendants.
We also dismiss MGJ’s claims under Title II of the ADA against the individual District
Defendants. Under Title II of the ADA, “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.”103 As MGJ clarifies its ADA claims against the individual District Defendants are in
their official capacities, we dismiss these claims as duplicative of her ADA claim against the
District.
C. Federal law claims against Carson Valley.
i. MGJ fails to plead facts demonstrating Carson Valley is subject to the
ADA.
MGJ’s claims against Carson Valley under the ADA fail because Carson Valley is not a
public entity. As explained, Title II of the ADA prohibits disability discrimination against
17

certain individuals by a “public entity.”104 A public entity is defined as “(A) any State or local
government; (B) any department, agency, special purpose district, or other instrumentality of a
State or States or local government; and (C) the National Railroad Passenger Corporation, and
any commuter authority.”105
Our court of appeals has not taken a position in a precedential case as to whether a
private corporation providing government services to a public entity under an agreement
becomes an “instrumentality” of the state.

In Matthews v. Pennsylvania Department of

Corrections, our court of appeals held in a nonprecedential opinion “a private corporation is not
a public entity merely because it contracts with a public entity to provide some service.”106 This
holding is consistent with the rulings of the courts of appeals for the Second and Eleventh
Circuits.107 Courts reviewing whether an entity is an instrumentality of the state have concluded
the term instrumentality “refers to governmental units or units created by them.”108 In light of
this case law, we find no basis for concluding Carson Valley—a private entity providing TSS
services to students in the District—is an instrumentality of the state or otherwise a public entity.
We dismiss the Title II ADA claim against Carson Valley.
ii. MGJ fails to state a claim against Carson Valley under Title IX.
MGJ’s Title IX claim against Carson Valley fails. Carson Valley argues it is not subject
to Title IX because it does not receive federal assistance and did not act with deliberate
indifference. We reject these argument, but dismiss this claim against Carson Valley for another
reason: MGJ fails to allege Carson Valley had substantial control over MGJ’s school or the
assailant.
Title IX prohibits sex-based discrimination “under any education program or activity
receiving Federal financial assistance.”109 Carson Valley argues MGJ fails to allege Carson

18

Valley received federal funds. This argument fails at this early stage because MGJ pleads
Carson Valley is “a recipient of federal financial assistance.”110
1. MGJ pleads sufficient facts Carson Valley acted with
deliberate indifference.
MGJ pleads sufficient facts demonstrating Carson Valley acted with deliberate
indifference.

To plead a Title IX claim against Carson Valley for student-on-student sexual

harassment, MGJ must plead sexual harassment “that is so severe, pervasive, and objectively
offensive, and that so undermines and detracts from the [her] educational experience, that [she is]
effectively denied equal access to an institution’s resources and opportunities.”111 A school is
liable for its “deliberate indifference to known acts of harassment” which have “a systemic effect
on educational programs and activities.”112
As alleged, Carson Valley should have provided MGJ a TSS worker at the time of the
assault, which would have prevented the assault from occurring. MGJ also alleges Carson
Valley knew about “sexually inappropriate actions of students in MGJ’s program” during the
2014–2015 school year, and knew specifically about the actions of MGJ’s assailant, but “actively
attempted to conceal” the students’ sexually inappropriate behavior from the parents.113 Carson
Valley also knew MGJ’s condition created elopement risks and made her vulnerable to peer-topeer pressure because she is “not able to say no” and is not “aware of how to handle” sexually
charged peer-to-peer situations.114 MGJ adequately pleads deliberate indifference in light of
Carson Valley’s knowledge of MGJ’s behaviors and its allegedly deliberate attempts to conceal
known acts of sexually inappropriate behavior—by the assailant and other students—despite
being responsible for providing therapeutic support services to MGJ.115

19

2. MGJ fails to plead facts demonstrating Carson Valley had
substantial control over the alleged assailant and the
environment in which the assault occurred.
Although MGJ pleads sufficient facts demonstrating Carson Valley acted with deliberate
indifference to known acts of harassment, it is not liable under Title IX because it did not have
substantial control over the harasser or the environment in which the harassment occurred. A
funding recipient cannot be liable for its deliberate indifference “where it lacks the authority to
take remedial action.”116 Title IX prohibits sex discrimination “under any education program or
activity,” and “program or activity” is defined as “the operations of” certain funding
recipients.117 The Supreme Court in Davis v. Monroe County explained this language in Title IX
requiring the harassment to “occur ‘under’ ‘the operations of’ a funding recipient” necessarily
requires the harassment to “take place in a context subject to the” funding recipient’s control.118
Liability is limited “to circumstances wherein the recipient exercises substantial control over
both the harasser and the context in which the known harassment occurs.”119 For example, when
“misconduct occurs during school hours and on school grounds . . . the misconduct is taking
place ‘under’ an ‘operation’ of” a school.120
MGJ seeks to hold Carson Valley—a non-school entity providing TSS services to MGJ
through the District—liable under Title IX for conduct occurring outside of Carson Valley by a
student who Carson Valley had no apparent control over. MGJ alleges the harassment occurred
at Swenson High School. Although Carson Valley allegedly knew about the assailant and his
earlier harassment of MGJ, MGJ fails to allege sufficient facts plausibly demonstrating Carson
Valley had substantial control over the harasser and the context in which the harassment
occurred. We dismiss MGJ’s Title IX claim against Carson Valley.

20

iii. MGJ’s §1983 claims against Carson Valley fail because she does not
plead Carson Valley engaged in conduct under color of state law.
Carson Valley argues MGJ’s §1983 claims fail because MGJ does not allege facts
demonstrating it acted under the color of state law. We agree.
Under §1983, Carson Valley cannot be liable unless it committed the alleged misconduct
“under color of state law.”121 For liability under the United States Constitution, Carson Valley’s
alleged misconduct must have involved “state action.”122

“The ‘under color of state law’

analysis is equivalent to the ‘state action’ analysis.”123 MGJ has the burden of proving Carson
Valley acted under color of state law.124
Under this analysis, the “principal question” is whether there exists a “close nexus”
between the state and the alleged misconduct allowing us to conclude the “private behavior may
be fairly treated as that of the State itself.”125 Our court of appeals recognizes “three broad tests”
for determining whether state action exists: (1) whether the private entity exercised powers
traditionally within the “exclusive” prerogative of the state; (2) whether the private entity acted
with the help of or in concert with state officials; and (3) whether the state sufficiently insinuated
itself into a position of interdependence with the private party rendering it a joint participant in
the alleged misconduct, also known as the symbiotic relationship test.126 Under each test, “the
inquiry is fact-specific.”127
MGJ argues Carson Valley engaged in state action because: (a) it executed a compulsory
public function delegated to it by the District; and (b) it jointly participated with the District in an
arrangement clothed in the authority of state and federal law.128 As it is not clear which tests
MGJ relies upon, we review Carson Valley’s status as a state actor under all three tests but find
her allegations insufficient as a matter of law.

21

1. MGJ does not allege facts showing Carson Valley exercised
powers traditionally within the exclusive prerogative of the
state.
Carson Valley did not exercise powers traditionally within the exclusive prerogative of
the state. Whether an entity exercises powers traditionally within the exclusive prerogative of
the state depends upon the authority on which the powers are based. For example, in West v.
Atkins, the Supreme Court held a private doctor contracted with the state to provide prison
medical services constituted a state actor because the state had an affirmative obligation to
provide adequate medical care to prisoners under the Eighth Amendment.129 Alternatively, the
Supreme Court in Rendell-Baker v. Kohn held a private high school providing educational
services to maladjusted students at public expense did not constitute a state actor as it related to
its employee discharge decisions.130 Although the school performed a public function funded
and required by the state, the state’s decision to fund and require these services constituted a
“legislative policy choice” which “in no way makes these services the exclusive province of the
State,” as the state only recently began providing “education for students who could not be
served by traditional public schools.”131 “That a private entity performs a function which serves
the public does not make its acts state action.”132
We similarly conclude Carson Valley—in providing TSS support staff services—does
not perform a function which has been traditionally the exclusive prerogative of the state. MGJ
relies upon relatively recent statutes making schools responsible for providing certain services to
disabled students, including the IDEA and Pennsylvania Code provisions. Congress passed the
predecessor to the IDEA in 1970,133 and the Pennsylvania Code provisions cited were adopted on
or after 1991.134 As in Rendell-Baker, these legislative policy choices do not make these services
the exclusive province of the state.

22

2. MGJ does not allege Carson Valley acted with the help of or in
concert with state officials.
MGJ does not allege sufficient facts showing Carson Valley acted in concert with state
officials. The Supreme Court has illustrated the “acting in concert” concept on a number of
occasions. For example, a private entity acts in concert with state officials when it conspires
with those officials to deprive federal rights.135 This occurred in Adickes v. S. H. Kress & Co.,
where the Supreme Court found state action because a restaurant employee allegedly conspired
with a police officer to deny a restaurant patron services for racially discriminatory reasons. 136
Additionally, a private entity’s acts may be attributable to the state where the actor
invokes the aid of state officials to take advantage of state procedures.137 For example, in Lugar
v. Edmondson Oil Co., the Supreme Court held “a private party’s joint participation with state
officials in the seizure of disputed property is sufficient to characterize that party as a ‘state
actor’ for purposes of the Fourteenth Amendment.”138
Alternatively, the Supreme Court in Rendell-Baker found state officials did not play a
comparable role to the public officials in Adickes and Lugar.139 In finding no state action in the
private school’s decision to discharge a school counselor, the Court noted the state played a
“limited role” in the school’s personnel decisions.140 The state employed a committee with the
power to review the qualifications of counselors selected by the school to ensure the counselor
met the school’s grant requirements, but the committee had no authority to discharge a qualified
counselor.141 In other words, the state committee had no involvement in the private school’s
discharge decision sufficient to fairly attribute the private school’s decision to the state.
MGJ fails to allege facts demonstrating Carson Valley acted in concert with the state in
connection with its allegedly unconstitutional conduct amounting to liability under the statecreated danger doctrine. MGJ does not allege facts demonstrating the Carson Valley and the
23

District jointly agreed to place MGJ in an unsupervised setting with her alleged assailant. At
oral argument, MGJ explained the District—not Carson Valley—has the ultimate obligation to
provide TSS services to MGJ. The parties also informed us Carson Valley may have played a
role in recommending to a purported state actor the reduction of MGJ’s TSS services. These
facts, however, are not alleged, and we express no opinion on whether these additional facts
would be sufficient to find Carson Valley acted in concert with state officials. On the facts now
alleged, Carson Valley did not act in concert with state officials in connection with its allegedly
unconstitutional conduct fairly attributable to the state.
3. MGJ does not allege facts demonstrating a symbiotic
relationship.
MGJ does not allege facts demonstrating the state sufficiently insinuated itself into a
position of interdependence with Carson Valley rendering it a joint participant in the alleged
misconduct. The classic application of this test is Burton v. Wilmington Parking Authority. In
that case, the Supreme Court held a private restaurant’s racially discriminatory exclusion of
patrons constituted state action because the restaurant sat on public property—a parking
garage—and the restaurant’s rent contributed to the garage.142 The state, by its inaction, profited
from its position of fiscal interdependence with the discriminatory restaurant, making it fair to
characterize the state and the restaurant as joint participants.143
Although the Supreme Court in Burton found a symbiotic relationship based in part on
the fiscal interdependence between the restaurant and the state, merely contracting with a public
entity does not create a symbiotic relationship.

As the Supreme Court in Rendell-Baker

explained, the fact a private school receives virtually all of its income from government funding
does not make its conduct attributable to the state, as the acts of “private contractors do not
become acts of the government by reason of their significant or even total engagement in
24

performing public contracts.”144 The Court rejected the argument the private school had a
symbiotic relationship based on its substantial government funding, stating “the school’s fiscal
relationship with the State is not different form that of many contractors performing services for
the government. No symbiotic relationship such as existed in Burton exists here.”145
Similarly, in Crissman v. Dover Downs Entertainment, Inc., our court of appeals found
no symbiotic relationship between a horse racing track and the state of Delaware even though the
state licensed and regulated the track’s gambling operations, paid the track a commission to
subsidize its gambling operations, and received funds from the track’s gambling operations.146
The court distinguished the Supreme Court’s ruling in Burton based on its “unique” fact pattern,
explaining Burton’s application in other contexts “must be so limited.”147
We similarly conclude MGJ fails to allege a Burton-esque symbiotic relationship
between Carson Valley and the state. In arguing a symbiotic relationship exists, MGJ alleges
Carson Valley (a) acted under a contract with the District to provide educational services on
behalf of the District; (b) staffed a TSS worker for MGJ; (c) conducted a biopsychological reevaluation of MGJ; (d) supervised and had custody over MGJ; (e) performed services to the
District integral to the public education system as an instrumentality of the District and the state;
(f) provided one-on-one supervision services and life-skills training to MGJ; and (g) knew about
MGJ’s abilities.148
We do not consider MGJ’s conclusory allegation it performed services as an
“instrumentality” of the state. In view of these remaining nonconclusory allegations and the
Complaint as a whole, we find no basis to find MGJ plead Carson Valley had a symbiotic
relationship with the state. This situation does not resemble the interdependence present in

25

Burton, as the state does not profit from Carson Valley’s allegedly unconstitutional conduct. We
accordingly dismiss MGJ’s claims against Carson Valley under §1983.
D. State law claims against the District and individual District Defendants.
i. MGJ may proceed on her state law claims against the District and
individual District Defendants except for her negligence claims.
The District and individual District Defendants argue they are immune from MGJ’s state
law claims under Pennsylvania’s Political Subdivision Tort Claims Act. Under the Act, local
agencies and their employees enjoy immunity in personal injury cases except in eight statutorily
enumerated contexts.149 These contexts include (1) vehicle liability, (2) care, custody or control
of personal property, (3) real property, (4) trees, traffic controls and street lighting, (5) utility
service facilities, (6) streets, (7) sidewalks, and (8) care, custody or control of animals.150
Although such employees are immune for their negligent acts,151 they lose this immunity when
their conduct constitutes “a crime, actual fraud, actual malice or willful misconduct.”152 It
follows the individual District Defendants enjoy immunity as to MGJ’s negligence claims.
Statutory immunity does not bar MGJ’s claims for intentional infliction of emotional
distress against the District and individual District Defendants. This tort requires conduct which
would constitute willful misconduct.153 The District and individual District Defendants enjoy
immunity as to the intentional infliction of emotional distress claims.
Similarly, statutory immunity does not foreclose MGJ’s claims for breach of fiduciary
duty against the District and individual District Defendants. To establish a breach of fiduciary
duty under Pennsylvania law, MGJ must prove: (1) Defendants “negligently or intentionally
failed to act in good faith and solely for the benefit of” MGJ in all matters for which Defendants
were employed; (2) MGJ suffered an injury; and (3) Defendants’ failure to act solely for MGJ’s
benefit “was a real factor in bringing about [her] injuries.”154 Failing to act in good faith, under
26

certain circumstances, can include “willful rendering of imperfect performance.”155 It follows
Defendants do not enjoy immunity to the extent the claim is based on their intentional failure to
act in good faith. MGJ may proceed on her breach of fiduciary duty claims against the District
and individual District Defendants to the extent she seeks to prove a breach through willful
conduct.
ii. MGJ may not recover punitive damages under her pled §1983 claims.
The District and individual District Defendants argue the punitive damages claim should
be dismissed because punitive damages are not permissible under the Rehabilitation Act, the
ADA, and Title IX. MGJ counters punitive damages are recoverable against the individual
District Defendants under § 1983.
MGJ may not recover punitive damages against the individual District Defendants under
§1983. As MGJ clarified at oral argument, she sues these school officials in their official
capacity. We dismissed these §1983 official capacity claims as duplicative of her municipal
liability claim against the District. We also point out punitive damages are not recoverable
against a municipality.156 Although punitive damages are not recoverable against the individual
District Defendants under the pled federal claims, we express no opinion on their punitive
damages liability under state law.
E. State law claims against Carson Valley.
i. MGJ states a claim for intentional infliction of emotional distress
claim against Carson Valley.
Carson Valley argues MGJ’s intentional infliction of emotional distress (“IIED”) claim
fails because MGJ does not allege extreme or outrageous conduct. To state a claim for IIED,
MGJ must plead: (1) extreme and outrageous conduct (2) intentionally or recklessly (3) causing

27

emotional distress (4) which must be severe.157 It is our responsibility to determine if the alleged
conduct pleads the requisite level of outrageousness.158
For conduct to be outrageous, it “must be so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized society.”159 “Generally, the case is one in which the recitation of
the facts to an average member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous.’”160
Courts are split on whether an IIED claim is appropriate in the context of student abuse at
school. For example, in Doe v. Allentown School District, the court held the school district
defendants could not be liable for IIED for covering up multiple sexual assaults of students by
another student because the district defendants did not intend to harm the children.161
Alternatively, in Vicky M. v. Northeastern Educational Intermediate Unit 19, the court allowed
the IIED claim to proceed against the school district defendants who received repeated warnings
of a teacher’s physical and emotional abuse of autistic students.162
MGJ adequately pleads outrageousness.

MGJ alleges Carson Valley should have

provided MGJ a TSS worker at the time of the assault, which would have prevented the assault
from occurring. MGJ also alleges Carson Valley knew about “sexually inappropriate actions of
students in MGJ’s program” during the 2014–2015 school year, and knew specifically about the
actions of MGJ’s assailant, but “actively attempted to conceal” the students’ sexually
inappropriate behavior from the parents.163 Carson Valley also knew MGJ’s condition created
elopement risks and made her vulnerable to peer-to-peer pressure because she is “not able to say
no” and is not “aware of how to handle” sexually charged peer-to-peer situations.164 A jury
could find outrageousness considering Carson Valley allegedly knew about MGJ’s disabilities

28

rendering her more susceptible to elopement and Carson Valley’s allegedly deliberate attempts to
conceal known acts of sexually inappropriate behavior—by the assailant and other students—
despite being responsible for providing therapeutic support services to MGJ. MGJ may proceed
on her IIED claim against Carson Valley.
ii. MGJ states a claim for negligence against Carson Valley.
To allege a negligence claim, MGJ must establish: “(1) a duty or obligation recognized
by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting
injury; and (4) actual damages.”165 Carson Valley argues it owed no duty to MGJ, its alleged
negligence did not cause harm to MGJ, and the sexual assault was not a foreseeable consequence
of Carson Valley’s alleged negligence.
MGJ adequately pleads Carson Valley had a duty to MGJ. “The nature of the duty which
is owed in any given situation hinges primarily upon the relationship between the parties at the
time of the plaintiff’s injury.”166 “Whether a duty exists is ultimately a question of fairness. The
inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public
interest in the proposed solution.”167 Given Carson Valley’s therapeutic relationship with MGJ
based on MGJ’s known disabilities, it is fair to find Carson Valley had a duty of care to avoid
harming MGJ by its own negligence.
MGJ also adequately pleads causation and proximate causation. Because Carson Valley
knew about MGJ’s elopement risks, her susceptibility to peer pressure, and the assailant’s and
other students’ earlier inappropriate sexual conduct, Carson Valley should have reasonably
foreseen its failure to provide MGJ a TSS worker during lunch hours would result in MGJ
eloping with another student who would sexual assault her. MGJ may proceed on her negligence
claim against Carson Valley.

29

iii. MGJ may proceed on her punitive damages claims against Carson
Valley.
Carson Valley argues MGJ fails to plead sufficient facts to support her punitive damages
claim. MGJ counters she pleads sufficient facts to support her punitive damages claim against
Carson Valley.
MGJ pleads sufficient facts to proceed on her punitive damages claim as it relates to her
state law claims against Carson Valley. In Pennsylvania, “[p]unitive damages may be awarded
for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference
to the rights of others.”168 In determining the propriety of punitive damages, “the state of mind
of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.”169
To sustain a claim for punitive damages, MGJ must plead: (1) Carson Valley “had a subjective
appreciation of the risk of harm to which [MGJ] was exposed” and (2) Carson Valley “acted, or
failed to act, as the case may be, in conscious disregard of that risk.”170
MGJ’s allegations are sufficient to satisfy the requirements of a punitive damages claim
against Carson Valley.

She alleges Carson Valley actively attempted to conceal sexual

misconduct of other students, including MGJ’s assailant.

She also alleges Carson Valley

reduced its provision of TSS services despite knowing of these concerns and knowing MGJ’s
disability caused elopement risks and rendered her susceptible to peer pressure. Given these
allegations, MGJ adequately pleads facts demonstrating Carson Valley consciously disregarded
the risk another student would sexual assault MGJ. MGJ may proceed on her punitive damages
claim as relevant to her state law claims against Carson Valley.
III.

Conclusion
We grant in part Defendants’ motions and dismiss the Rehabilitation Act claims against

the District, the individual District Defendants, and Carson Valley as barred by the release.
30

We dismiss all §1983 claims against the individual District Defendants, Carson Valley
and against the District with leave to amend her supervisory liability claim against the District.
We dismiss the Title II ADA official capacity and negligence claims against the individual
District Defendants. We dismiss the Title II ADA claim and the Title IX claim against Carson
Valley.
MGJ may proceed on her IDEA breach of contract, Title IX, ADA, and state law claims
against the District.171 She may also proceed on her state law claims except negligence against
the individual District Defendants. MGJ may proceed against Carson Valley on her state law
claims.

1

ECF Doc. No. 1, ¶ 2; ECF Doc. No. 1, at p. 27. In the parties’ briefing, the parties refer to MGJ
as MJG despite the alternative spelling in the Complaint. At oral argument, counsel for MGJ
confirmed her initials are MJG. We refer to her as MGJ consistent with her name in the caption
until such time the caption is amended.
2

Id. ¶ 23.

3

Id.

4

Id. ¶ 3.

5

Id. ¶ 106.

6

Id. ¶¶ 7, 36, 138.

7

Id. ¶¶ 90, 106, 120.

8

Id. ¶ 21.

9

Id. ¶¶ 7, 21–22.

10

Id. ¶¶ 15, 18.

11

Id. ¶ 19.

31

12

Id.

13

Id. ¶ 28.

14

Id. ¶ 33.

15

Id. ¶ 37.

16

Id. ¶ 38.

17

Id. ¶ 27.

18

Id. ¶ 42.

19

Id.

20

Id. ¶ 43.

21

Id. ¶ 44.

22

Id. ¶¶ 40–41, 45.

23

Id. ¶¶ 108–09.

24

Id. ¶¶ 109–111.

25

Id. ¶ 111.

26

Id. ¶ 19.

27

Id. at pp. 28–29.

28

Id. at p. 29.

29

Id. ¶ 20.

30

Id. ¶ 83.

31

29 U.S.C. § 701, et seq.

32

20 U.S.C. § 1400, et seq.; ECF Doc. No. 1, ¶ 52.

33

Id. ¶ 53; ECF Doc. No. 11-2, ¶¶ 1–3 (emphasis in original).

34

ECF Doc. No. 1, at p. 40.
32

35

ECF Doc. No. 11-2, ¶ 3.

36

ECF Doc. No. 1, ¶ 149.

37

MGJ does not allege whether the John Doe defendants are employees of the District, Carson
Valley, or otherwise. ECF Doc. No. 1, ¶ 8.
38

20 U.S.C. § 1681 et seq.

39

42 U.S.C. § 12131 et seq.

40

29 U.S.C. § 794 et seq.

41

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim satisfies the plausibility standard when the facts alleged “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Burtch v. Millberg
Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the
plausibility standard is not “akin to a ‘probability requirement,’” there nevertheless must be more
than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement
to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:
(1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’” (2) “it should
identify allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016)
(quoting Iqbal, 556 U.S. at 675, 679); see also Burtch, 662 F.3d at 221; Malleus v. George, 641
F.3d 560, 563 (3d. Cir. 2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d. Cir.
2010).
In deciding a Rule 12(b)(6) motion, we may consider “the complaint, exhibits attached to
the complaint, matters of public record, as well as undisputedly authentic documents if the
complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230
(3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993)).
42

ECF Doc. No. 11-2.

43

Although Carson Valley argues MGJ’s release with the District—a state actor—bars the claims
against it presumably because it is an “agent” or “servant” of the District, Carson Valley also
argues it is not a state actor.
33

44

ECF Doc. No. 15.

45

ECF Doc. No. 18, ¶¶ 14–15.

46

Id. ¶ 15.

47

Harrity v. Med. Coll. of Pennsylvania Hosp., 653 A.2d 5, 10 (Pa. Super. 1994) (citing Flatley
by Flatley v. Penman, 632 A.2d 1342 (Pa. Super. 1993)).
48

See Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 469 (Pa. 2006).

49

Flatley by Flatley, 632 A.2d at 1344 (citing Sparler v. Fireman’s Insurance Company of
Newark, New Jersey, 521 A.2d 433 (Pa. Super. 1987) (en banc)).
50

Habjan v. Habjan, 73 A.3d 630, 641 (Pa. Super. 2013) (citing Harrity, 653 A.2d at 10).

51

Bowersox Truck Sales & Serv., Inc. v. Harco Nat. Ins. Co., 209 F.3d 273, 279 (3d Cir. 2000)
(quoting Restifo v. McDonald, 230 A.2d 199, 201 (Pa. 1967)).
52

Id. at 735.

53

Stornawaye Properties, Inc. v. Moses, 76 F. Supp. 2d 607, 615 (E.D. Pa. 1999).

54

Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 93 (3d Cir. 2001) (quoting
Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa. Super. 1993)).
55

ECF Doc. No. 11-2, ¶ 2 (emphasis in original).

56

Id. ¶ 3.

57

Id. ¶ 1.

58

Id. ¶ 2 (emphasis added).

59

Id. (emphasis added).

60

Id. ¶ 1.

61

Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002); Thourot v.
Monroe Career & Tech. Inst., No. 14-1779, 2016 WL 6082238, at *8 (M.D. Pa. Oct. 17, 2016).
62

Wright v. City of Philadelphia, No. 10-1102, 2015 WL 894237, at *13 (E.D. Pa. Mar. 2, 2015)
(citing Nawuoh v. Venice Ashby Cmty. Ctr., 802 F. Supp. 2d 633, 639 (E.D. Pa. 2011); M.B. ex
rel. T.B. v. City of Phila., No. 00-5223, 2003 WL 733879, at *6 (E.D. Pa. Mar. 3, 2003)).
34

63

Id. (citing M.B. ex rel T.B., 2003 WL 733879, at *6; Taxioly v. City of Phila., No. 97-1219,
1998 WL 633747, at *13 (E.D. Pa. Sept. 10, 1998)).
64

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978); see also City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
65

Vargas v. City of Philadelphia, 783 F.3d 962, 974 (3d Cir. 2015) (quoting City of Canton, 489
U.S. at 389–91) (brackets omitted).
66

Morrow v. Balaski, 719 F.3d 160, 170 (3d Cir. 2013)

67

Id. at 177.

68

L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 242 (3d Cir. 2016) (quoting Bright v.
Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006).
69

Bright, 443 F.3d at 282 (quoting D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d
1364, 1374 (3d Cir. 1992) (en banc)) (brackets omitted).
70

L.R., 836 F.3d at 242.

71

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989).

72

Id. at 192.

73

Id. at 193.

74

Id. at 192–93.

75

Id. at 193.

76

Id. at 202.

77

D.R. by L.R., 972 F.2d at 1374.

78

Id. at 1366.

79

Id.

80

Id. at 1374–75.

81

Id. at 1375.

82

Morrow, 719 F.3d at 164, 178.
35

83

Id. at 177.

84

Id. at 178.

85

Id.

86

Id. at 178 (quoting Bright, 443 F.3d at 281) (brackets omitted).

87

L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 243 (3d Cir. 2016).

88

Id.

89

Id.

90

Id.

91

Id.

92

Id. at 244.

93

ECF Doc. No. 1, ¶¶ 40–41, 45, 108–09.

94

City of Canton, 489 U.S. at 389.

95

Reitz v. Cty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997) (citing Colburn v. Upper Darby
Township, 946 F.2d 1017, 1030 (3d Cir. 1991)).
96

C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000).

97

White v. Brommer, 747 F. Supp. 2d 447, 463 n.42 (E.D. Pa. 2010) (quoting Kline ex rel. Arndt
v. Mansfield, 255 F. App’x 624, 629 (3d Cir. 2007)); see also City of Canton, 489 U.S. at 391
(“Neither will it suffice to prove that an injury or accident could have been avoided if an officer
had had better or more training, sufficient to equip him to avoid the particular injury-causing
conduct.”).
98

C.H. ex rel. Z.H., 226 F.3d at 202.

99

ECF Doc. No. 1, ¶¶ 96–97.
This holding is alternative to our holding dismissing such claims as barred by the release.

100

101

U.S. Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605 (1986).

102

Id. at 605.

36

103

42 U.S.C. § 12132 (emphasis added).

104

42 U.S.C. § 12132.

105

42 U.S.C. § 12131(1).

106

Matthews v. Pennsylvania Dep’t of Corr., 613 F. App’x 163, 170 (3d Cir. 2015).

107

Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010); see also Green v. City of New York,
465 F.3d 65, 79 (2d Cir. 2006).
108

Langston v. Milton S. Hershey Med. Ctr., No. 15-02027, 2016 WL 1404190, at *11, *31
(M.D. Pa. Apr. 11, 2016) (quoting Edison, 604 F.3d at 1310).
109

20 U.S.C. § 1681(a).

110

ECF Doc. No. 1, ¶ 138.

111

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 205–06 (3d Cir. 2001).

112

Id. at 206 (quoting Davis, 526 U.S. at 633).

113

ECF Doc. No. 1, ¶¶ 40–41, 45.

114

Id. ¶ 23.

115

We reject Carson Valley’s argument MGJ’s allegations regarding its knowledge are
conclusory, as conditions of the mind such as knowledge “may be alleged generally.” Fed. R.
Civ. P. 9(b).
116

Id. at 644.

117

20 U.S.C. § 1681(a); 20 U.S.C. § 1687(1)–(4).

118

Davis, 526 U.S. at 645.

119

Id.

120

Id. at 645 (citing Doe v. Univ. of Illinois, 138 F.3d 653, 661 (7th Cir. 1998)).

121

Sprauve v. W. Indian Co., 799 F.3d 226, 229 (3d Cir. 2015) (quoting Groman v. Twp. of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995)).
122

Id. (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).

37

123

Id. (quoting Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005)).

124

Groman, 47 F.3d at 638 (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

125

Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (quoting Leshko, 423 F.3d at 339).

126

Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)).

127

Id. (quoting Groman, 47 F.3d at 638) (brackets omitted).

128

ECF Doc. No. 14-3, at pp. 8, 13.

129

West v. Atkins, 487 U.S. 42, 56 (U.S. 1988).

130

Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).

131

Id.

132

Id.

133

Education of the Handicapped Act in 1970, 84 Stat. 175 (1970); see also Schaffer ex rel.
Schaffer v. Weast, 546 U.S. 49, 51 (2005).
134

22 Pa. Code § 15.3 (adopted in 1991); 22 Pa. Code § 14.102 (adopted in 2001).

135

Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970).

136

Id. at 157.

137

Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 (1982).

138

Id. at 941.

139

Rendell-Baker, 457 U.S. at 838 n.6.

140

Id.

141

Id.

142

Burton v. Wilmington Parking Auth., 365 U.S. 715, 724–25 (1961).

143

Id.

144

Rendell-Baker, 457 U.S. at 841.

38

145

Id. at 843.

146

Crissman v. Dover Downs Entm't Inc., 289 F.3d 231, 243 (3d Cir. 2002).

147

Id. at 244.

148

ECF Doc. No. 14-3, at p. 5.

149

42 Pa. C.S. §§ 8541, 8542(b), 8545.

150

42 Pa. C.S. § 8542(b).

151

Wade v. City of Pittsburgh, 765 F.2d 405, 412 (3d Cir. 1985).

152

42 Pa. C.S. § 8550.

153

See Kokinda v. Breiner, 557 F. Supp. 2d 581, 595 (M.D. Pa. 2008).

154

Dinger v. Allfirst Fin., Inc., 82 F. App’x 261, 265 (3d Cir. 2003) (quoting McDermott v. Party
City Corp., 11 F. Supp. 2d 612, 626 n.18 (E.D. Pa. 1998)) (brackets omitted).
155

Id. at 266 (quoting Kaplan v. Cablevision of Pa., Inc., 671 A.2d 716, 722 (Pa. Super. 1996)).

156

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

157

White v. Ottinger, 442 F. Supp. 2d 236, 251 (E.D. Pa. 2006) (citing Hoy v. Angelone, 691 A.2d
476, 482 (Pa. Super. 1997)).
158

Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990) (citing Cox v. Keystone
Carbon, 861 F.2d 390, 395 (3d Cir. 1988)).
159

Hoy, 720 A.2d at 754 (quoting Buczek v. First National Bank of Mifflintown, 531 A.2d 1122,
1125 (Pa. Super. 1987)).
160

Strickland v. Univ. of Scranton, 700 A.2d 979, 987 (Pa. Super. Ct. 1997).

161

Doe v. Allentown Sch. Dist., No. 6-1926, 2007 WL 2814587, at *10 (E.D. Pa. Sept. 21, 2007).

162

Vicky M. v. Ne. Educ. Intermediate Unit 19, 486 F. Supp. 2d 437, 462 (M.D. Pa. 2007).

163

ECF Doc. No. 1, ¶¶ 40–41, 45.

164

Id. ¶ 23.

165

Toro v. Fitness Int’l LLC., 150 A.3d 968, 976–77 (Pa. Super. 2016) (citing Estate of Swift by
Swift v. Northeastern Hosp., 690 A.2d 719, 722 (Pa. Super. 1997)).
39

166

Id. at 977.

167

Campo v. St. Luke’s Hosp., 755 A.2d 20, 24 (Pa. Super. 2000) (quoting Brandjord v. Hopper,
688 A.2d 721, 723 (Pa. Super. 1997)).
168

Feld v. Merriam, 485 A.2d 742, 747 (1984).

169

Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (quoting Feld, 485 A.2d
at 748) (brackets omitted).
170

Id. at 772 (citing Martin v. Johns-Manville Corp., 494 A.2d 1088, 1097–98 (Pa. 1985)).

171

The District’s only argument for dismissing the Title IX claim against it at this stage is based
on the limited release. As shown, we do not agree with the District as to the broad scope of the
September 27, 2016 release. But we express no opinion on whether the Title IX claim against
the District will proceed to the jury.

40