H.J. v. DELAPLAINE MCDANIEL SCHOOL et al

Filing 15

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 11/30/2017. 11/30/2017 ENTERED AND COPIES E-MAILED.(sme, )

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

H.J., a minor, by BLANCHE WELLS,
GUARDIAN
Plaintiff,
v.
DELAPLAINE MCDANIEL
SCHOOL et al.,
Defendants.

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CIVIL ACTION

No. 17-3229

MEMORANDUM
PRATTER, J.

NOVEMBER 30, 2017

This case comes before the Court on behalf of a minor plaintiff who was attacked and
beaten by an elementary school bully in January 2016. She argues that the school officials are
liable for this attack because they created the danger that ultimately led to her injuries by failing
to discipline past instances of bullying or stop the attack when it happened. At issue is a motion
to dismiss the two state law claims and a federal § 1983 claim against both the school district and
its employees. 1
There is no question that the suffering endured by the child plaintiff—both physical and
emotional—engenders profound sympathy and dismay. Bullying is an issue around the country,
and no parent or guardian should have to stand idly by as his or her child is attacked or taunted. 2
However, the federal remedies against a school or school officials for a child’s injuries, even on
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The plaintiff has stipulated to dismissal of the other claims in the complaint, and to all claims against the
City of Philadelphia.
2
The National Center for Education Statistics and Bureau of Justice Statistics estimates that 28% of
children are bullied between grades 6 and 12. Although the rate of bullying steadily decreases as children
grow older, only between 20% and 30% of instances are reported to adults. See generally U.S.
Department of Education, Student Reports of Bullying and Cyber-Bullying: Results From the 2011
School Crime Supplement to the National Crime Victimization Survey (August 2013)
https://nces.ed.gov/pubs2013/2013329.pdf.

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school premises, are limited. Section 1983 was enacted to prohibit intentional acts by
government officials. For the plaintiff to recover, she must show that the bullying was aided in
some way by an affirmative act taken by the school. Ultimately, this is a mountain that the
plaintiff cannot climb, and the motion to dismiss is granted. Given that the § 1983 claim is
dismissed, the state law claims must be dismissed as well. The plaintiff is granted leave to amend
her complaint in accordance with this memorandum opinion and corresponding order.
BACKGROUND
I.

Factual Background

The plaintiff, H.J., is an elementary school student who has been routinely bullied in her
time at school. The bullying culminated in an event in January 2017 where H.J. was attacked and
had to be hospitalized. There was a group of students watching the attack at the scene, and a
school official allegedly present “allowed” the beating to happen. Am. Compl. ¶ 14. Moreover,
the complaint alleges that the school “actively encouraged this behavior of students by allowing
it, failing to punish the perpetrators and instead retaliating against H.J. and punishing H.J. for
complaining about these incidents.” Am. Compl. ¶ 17. H.J.’s guardian, on behalf of H.J., has
sued the school administrators as well as the school district for the attack.
II.

Standard of Review

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8
of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), “to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests,’” the plaintiff must provide
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

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will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (alteration
in original).
To survive a motion to dismiss, H.J. must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Specifically, “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. The question is not
whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to
cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (citation and
internal quotation marks omitted). Thus, assessment of the sufficiency of a complaint is “a
context-dependent exercise” because “[s]ome claims require more factual explication than others
to state a plausible claim for relief.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85,
98 (3d Cir. 2010).
In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized
parameters. For one, the Court “must consider only those facts alleged in the complaint and
accept all of the allegations as true.” ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994);
see also Twombly, 550 U.S. at 555 (stating that courts must “assum[e] that all the allegations in
the complaint are true (even if doubtful in fact)”); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010) (“[A] court must consider only 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”). Also, the Court must accept as true all reasonable inferences
emanating from the allegations, and view those facts and inferences in the light most favorable to
the nonmoving party. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); see
also Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010).

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That admonition does not demand that the Court ignore or discount reality. The Court
“need not accept as true unsupported conclusions and unwarranted inferences,” Doug Grant, Inc.
v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citations and internal
quotation marks omitted), and “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556
U.S. at 678; see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)
(explaining that a court need not accept a plaintiff’s “bald assertions” or “legal conclusions”
(citations omitted)). If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a
curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).
DISCUSSION
To state a claim against an individual under § 1983, a plaintiff must show that the
defendant (1) was a person who (2) under the color of state law (3) caused a (4) deprivation of
constitutional rights. City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985). Such a claim is
strictly circumscribed. Neither side here argues that the complaint failed to allege a deprivation
of constitution rights, or that the defendants were persons acting under the color of state law. The
question at hand focuses on the causation requirement in § 1983, in which H.J. relies on a theory
of indirect liability.
H.J. alleges a violation of her substantive due process right to bodily integrity3 and claims
that school officials are liable for the injuries she received at the hands of a bully. H.J. advances

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The complaint references many other constitutional provisions, but none of them are applicable and the
Court dismisses them. Moreover, the constitutional provision at issue is irrelevant to the analysis below.

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two arguments to support this claim. The first is a claim of state-created danger, 4 and the second
is a claim of Monell liability for an offending custom or practice.
I. State-Created Danger
“As a general matter . . . a State’s failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago Cnty.
Dep’t of Social Servs., 489 U.S. 189, 197 (1989). A claim of state-created danger is one of two
narrow exceptions to that general rule. To prevail on this theory, H.J. must prove the following
four 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;
3) a relationship between the state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts, or a member of a discrete class of persons
subjected to the potential harm brought about by the state’s actions, as opposed to a
member of the public in general; and
4) a state actor affirmatively used his or her authority in a way that created a danger to the
citizen or that rendered the citizen more vulnerable to danger than had the state not acted
at all.
Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013) (en banc). The facts in Morrow were
similar to the ones here. The Morrow plaintiffs brought suit against a school district because their
children were bullied so pervasively that the parents were forced to withdraw their children from
school. Each separate bullying incident was reported to the school officials. After hearing of the
bully’s actions, the school suspended her.

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To hold school officials liable for bullying under § 1983, the plaintiff must show either (1) a special
relationship between the students and the officials or (2) that the school officials created or enhanced the
danger to the bullied students. Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013) (en banc). Neither side
argues that a special relationship exists here, and for good reason. Such an argument has been rejected by
the Third Circuit Court of Appeals. See Id. at 177 (“[W]e cannot fashion a remedy under the special
relationship theory based on the facts alleged in this case.”); D.R. v. Middle Bucks Area Vocational
Technical School, 972 F.2d 1364 (3d Cir. 1992) (en banc) (finding no special relationship between a
school and students). The plaintiff must rely on the argument that the school officials created or enhanced
the danger to the bullied students.

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Although the school in Morrow took steps to stop the bullying, they did not go so far as
to expel the bully. Eventually, the bully attacked and injured the plaintiffs. The parents sued,
arguing both a special relationship and state-created danger under § 1983. The Morrow court
rejected both theories. The court rejected the first theory out of hand, as it had been resolved by
earlier case law. See D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d
Cir. 1992) (en banc). The court focused on the extent to which school officials can be held liable
for bullying under a state-created danger theory, and ultimately held that the school could only
be held liable for affirmative acts.
The Morrow plaintiffs argued that allowing the bully to return from a suspension
constituted affirmative action on the part of school officials. In rejecting that claim, the Third
Circuit Court of Appeals noted that “the line between action and inaction is not always easily
drawn.” Morrow, 719 F.3d at 177. But to convert such passive inaction to an “affirmative act”
would convert any decision on the part of school officials into an affirmative act that gives rise to
liability. In the Morrow case, such a rule would convert action aimed at protecting the children
(suspending the bully) into an act that gives rise to liability for a state-created danger, given that
a suspension will eventually allow the bully back into school. It would create incentives for
school officials to put their heads in the sand and allow bullying to run rampant, because the
minute the school official takes action to protect students, it would give rise to liability for not
protecting the student enough. Such a conclusion is untenable, given that an expansive reading of
an affirmative act would convert § 1983 from a statute that requires an affirmative act into one
that merely requires but-for causation.
The dispute in Morrow (and here) centered on the fourth element. The Morrow court held
that the state actors did not affirmatively use their authority to create a danger. The court relied

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on the fact that allowing a student to return to school was not the same as affirmatively placing
students in an unsafe situation. Similarly, H.J. alleges that school officials encouraged the bully
here “by allowing [bullying], failing to punish the perpetrators and instead retaliating against H.J.
and punishing H.J. for complaining about these incidents.” Am. Compl. ¶ 17.
As described in the complaint, that act of encouragement is insufficient under controlling
case law. In a certain sense, every inaction is action. Any time a school official fails to have
every corner of a school patrolled by security, it increases the risk of an assault between students.
As that straight forward situation demonstrates, the decision to not act does not and cannot rise to
the level of action sufficient to meet the requirements for a state-created danger. The Morrow
court highlighted the perverse results that this would entail: even an act to protect students,
where a student is nonetheless injured, would then be sufficient to meet a state-created danger
claim. Rather, for H.J.’s complaint to rise to the level of a state-created danger, she would need
to allege facts that show an active effort on the part of the school to encourage bullying, and an
effort to make the school a less safe place for the children. Short of such facts, H.J. cannot meet
her burden of establishing a state-created danger.
H.J. also argues encouragement by a school official during the actual attack. Again, this
hinges on the extent to which that school official encouraged the act. It is not enough to allege
that the school official tacitly endorsed the attack by inaction, as H.J. does. H.J. would need to
allege that the school official took steps to make the bullying happen, or stepped in to aid in the
attack somehow. Either way, the official who supposedly witnessed the attack is not a defendant,
and in any case, the school district cannot be held liable under a respondeat superior theory of
liability. Such a theory would, at a minimum, require amending the complaint to identify and add
this John Doe school official as a defendant and then alleging more than passive encouragement.

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II.

Supervisory Liability
The second argument H.J. advances is supervisory liability, commonly known as Monell

liability. The Supreme Court has only addressed the question of supervisory liability twice in the
last half century. First, in Rizzo v. Goode, the Court found that a “pattern of frequent police
violations” was insufficient to hold a police department liable under § 1983. 423 U.S. 362, 374
(1976). The Court held that there must be an “adoption and enforcement of deliberate policies”
by defendants to give rise to liability. Id. The Court refined this standard two years later in
Monell. There, a group of women challenged an official policy requiring pregnant employees to
take unpaid leaves of absence. Monell v. Dep’t of Social Servs. of City of New York, 436 U.S.
658 (1978). The Court held the challenge to the official policy was permissible, but such liability
is limited. Id. at 659. Although local governments were “persons” under § 1983, they could not
be held liable under a theory of respondeat superior. Id. at 691.
To be liable, the government must perform an official act. The “touchstone of the § 1983
action against a government body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution.” Id. at 690. However, “local governments . . .
may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval through the body’s official
decisionmaking channels.” Id.
In other words, for a supervisor to be held liable under Monell, there must be either (1) an
official act or (2) a custom that caused the deprivation of civil rights. The Monell Court rejected,
as a categorical matter, the concept of respondeat superior liability in § 1983. Rather, there must
be a “decision officially adopted or promulgated by those whose edicts or acts may fairly be said
to represent official policy.” Id. at 659. “Individual defendants who are policymakers may be

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liable under § 1983 if it is shown that such defendants, ‘with deliberate indifference to the
consequences, established and maintained a policy, practice or custom which directly caused
[the] constitutional harm.’” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Detention Ctr., 372 F.3d
572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford Area School Dist., 882 F.2d 720, 725 (3d
Cir. 1989)).
As lower courts analyzed the Rizzo and Monell cases, two salient features emerged. First,
for supervisory liability to attach, a plaintiff must either (a) “plead that [defendants] ‘directed
others to violate her rights’” 5 Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)
(quoting A.M., 372 F.3d at 586) or (b) that “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused [the] constitutional
harm.” Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989).
Second, liability hinges on causation. For supervisors or policymakers to be liable, their
actions must cause the deprivation of civil rights. In a straightforward application, a supervisor
would be liable under § 1983 for an unconstitutionally race-based arrest if that arrest was made
pursuant to an unconstitutional policy to arrest people based on race. But such a requirement
under Monell need not be an affirmative step. It can also be “deliberate indifference to the plight
of the person deprived.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). To meet the
deliberate indifference standard, plaintiffs must plead that (a) there is an unreasonable risk of a
deprivation of rights (b) that the supervisor or municipality was aware of that risk (c) that they
were indifferent to that risk and (d) the failure to enact policies regulating that risk caused the
deprivation of rights in this instance. Id. Only if all four elements are alleged can a policymaker’s
inaction fairly be deemed as causing a plaintiff’s deprivation of rights under § 1983.

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H.J. does not advance such a theory.

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However, H.J.’s complaint did not assert any facts that would create an inference of a
policy or custom to encourage bullying. In her briefing, H.J. merely reiterated the standard under
Monell and asserted that she “has a claim” under Monell. Likewise, at oral argument, counsel for
H.J. was unable to point to any specific policy or custom, or allege any facts sufficient to infer a
policy or custom.
The Court finds imaginative, but unavailing, H.J.’s unsubstantiated assertion that there
was a school policy to “keep order in the school” by allowing “students to release their hatred,
aggression, bullying and violence upon H.J. so as to deflect the students’ anger at the School
administration over poor school conditions.” Am. Compl. ¶ 21. Such a policy is not only illogical
as a strategic matter, but counter to the goal of the school’s mission to provide a safe learning
environment to children. It also belies basic conceptions of human decency and dignity. The
Court “need not accept as true unsupported conclusions and unwarranted inferences.” Doug
Grant, Inc., 232 F.3d at 183–84. It would be no less unreasonable to allege a school promoted
ugly profanity and name-calling in the halls as a way to “vent”, as some sort of latter-day version
of installing as school policy the adage “sticks and stones may break my bones, but words will
never hurt me.” That is certainly not today’s mantra. Making such unsubstantiated accusations
cannot satisfy the requirement that H.J. plead facts in support of the complaint to make it past a
motion to dismiss.
Given that H.J. has not adequately alleged a policy or custom, she must rely on the
deliberate indifference standard for a lack of a policy. Again, the complaint is void of any
allegations of the sort that would evince the school’s indifference to an unreasonable risk of a
deprivation of civil rights. Absent such allegations, the supervisory liability claim under Monell
must be dismissed.

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III.

Other Claims
The defendants also challenge claims brought against the school district defendants under

the ADA and various state law claims. H.J. agreed to dismiss all of them with the exception of
the intentional infliction of emotional distress (IIED) and state law negligence claims. Given that
the federal anchor claim is dismissed, “the state claims should be dismissed as well.” United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief can be granted. The plaintiff is granted
leave to amend her complaint before January 4, 2018 to state a claim for relief in accordance
with this opinion.
An appropriate order follows.

BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE

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