Barrett v. Wyoming Valley West School District
MEMORANDUM (Order to follow as separate docket entry) re 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Wyoming Valley West School District Signed by Magistrate Judge Joseph F. Saporito, Jr on 9/26/17. (ms)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BARBARA BARRETT, individually
and o/b/o S.S. and B.S., her minor
CIVIL ACTION NO. 3:16-cv-01769
WYOMING VALLEY WEST
This action was commenced by the filing of a praecipe for writ of
summons in the Court of Common Pleas of Luzerne County on October
Thereafter, on August 1, 2016, the plaintiff filed her
complaint. The plaintiff seeks damages under Title IX of the Education
Act, 20 U.S.C. § 1681(a) and under 42 U.S.C. § 1983. The defendant
filed a timely notice of removal in this court. Before us is the
defendant’s motion to dismiss the complaint under Fed. R. Civ. P.
12(b)(1) and 12(b)(6). (Doc. 3).
For the reasons stated herein, the
motion is denied in part and granted in part.
Statement of the Case
This case stems from an incident which occurred on November
8, 2013, involving S.S., a kindergarten student in the Wyoming Valley
School District at the Schuyler Elementary School. S.S. is the minor
child of plaintiff. The complaint alleges that on that date, S.S. was
kindergarten boys, when they physically touched S.S. in a sexual way in
a coat closet at the Schuyler Elementary School. (Doc. 1-2 ¶ 10). The
sexual assault was discovered by the kindergarten teacher at some
point after the boys had allegedly removed S.S.’s underwear. (Id. ¶ 12).
On November 12, 2013, the plaintiff met with the principal and school
counselors in order to discuss the circumstances. (Id. ¶ 14). A.K. and
L.C. each received a three-day suspension. (Id.). The days following the
alleged assault S.S. began having difficulty sleeping and was reluctant
to go to school. (Id. ¶ 16).
The plaintiff alleges that both of the kindergarten boys had older
brothers who may have had contact with B.S., S.S.’s older sister, who
was in fourth grade. (Id. ¶ 17). The plaintiff had lost confidence in the
school officials’ handling of the circumstances and alleged that she was
caused to take both S.S. and B.S. out of the school. (Id. ¶¶ 17,18).
On November 13, 2013, a representative of the defendant school
transportation would be at her home the following morning to transport
her daughters to the Dana Street Elementary School. Plaintiff had not
agreed to change the school for her daughters. (Id. ¶ 19). S.S. and B.S.
were out of school for over two and one half months during which time
they underwent regular counseling sessions and, at the same time, the
defendant school district exerted constant pressure upon the plaintiff to
have the minor children change schools. (Id. ¶ 22).
On January 10, 2014, the defendant school district filed truancy
charges against the plaintiff in the office of a local magisterial district
judge where the plaintiff was required to post a bond after she pled not
guilty to the charges and requested a hearing. (Id. ¶¶ 23, 24). Upon the
conclusion of the hearing, the truancy charges were summarily
dismissed by the court. (Id. ¶ 25).
Eventually, S.S. and B.S. were forced to change schools and to
attend the Dana Street Elementary School. (Id. ¶ 27).
Rule 12(b)(1) Standard
The plaintiff bears the burden of establishing the existence of
subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of
Civil Procedure. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
1409 (3d Cir. 1991); see also Const. Party of Pa. v. Aichele, 757 F.3d 347,
357 (3d Cir. 2014) (“A motion to dismiss for want of standing is . . .
properly brought pursuant to Rule 12(b)(1) because standing is a
jurisdictional matter.”). A defendant may challenge the existence of
subject matter jurisdiction in one of two fashions: it may attack the
complaint on its face or it may attack the existence of subject matter
jurisdiction in fact, relying on evidence beyond the pleadings. See Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen
v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). Where
a defendant attacks a complaint as deficient on its face, “the court must
consider the allegations of the complaint as true.” Mortensen, 549 F.2d
at 891. “In deciding a Rule 12(b)(1) facial attack, the court may only
consider the allegations contained in the complaint and the exhibits
attached to the complaint; matters of public record such as court
records, letter decisions of government agencies and published reports
of administrative bodies; and ‘undisputably authentic’ documents which
the plaintiff has identified as a basis of his claims and which the
defendant has attached as exhibits to his motion to dismiss.” Medici v.
Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2
(M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks
the existence of subject matter jurisdiction in fact, “no presumptive
truthfulness attaches to plaintiff’s allegations,” and “the trial court is
free to weigh the evidence and satisfy itself as to the existence of its
power to hear the case.” Mortensen, 549 F.2d at 891. This case falls into
the former category.
Rule 12(b)(6) Standard
Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for “failure to state a claim upon which
relief is granted.” Fed. R. Civ. P. 12(b)(6).
“Under Rule 12(b)(6), a
motion to dismiss may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court finds the plaintiff’s claims lack facial
plausibility.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d
Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). Although the Court must accept the fact allegations in the
complaint as true, it is not compelled to accept “unsupported
conclusions and unwarranted inferences, or a legal conclusion couched
as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir.
2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).
Further, “a court may consider an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to dismiss if the
plaintiff’s claims are based on the document.” Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993); In re
Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n.9 (3d Cir. 1993).
However, documents attached to a motion to dismiss may only be
considered if they are referred to in the plaintiff’s complaint and if they
are central to the plaintiff’s claims. Pryor v. Nat’l Collegiate Athletic
Ass’n, 228 F.3d 548, 560 (3d Cir. 2002); Ciolli v. Iravani, 625 F. Supp.
2d 276, 284 (E.D. Pa. 2009).
Under Rule12(b)(6), the defendant has the burden of showing that
no claim has been stated. Kehr Packages, 926 F.2d at 1409; Johnsrud v.
Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v. Luzerne Cty.
Head Start, Inc., 385 F. Supp. 2d 491, 495 (M.D. Pa. 2005). In deciding
the motion, the court may consider the facts alleged on the face of the
complaint, as well as “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.”
Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
A. The plaintiff has standing to sue.
This action is brought by a parent seeking to remedy alleged Title
IX violations of her minor children and seeking to remedy violation of
the constitutional rights of the parent.
As a general rule, “a litigant may only assert his own
constitutional rights or immunities.” United States v. Raines, 362 U.S.
17, 22 (1960); see also McGowan v. Maryland, 366 U.S. 420, 429 (1961)
(quoting Raines); O’Malley v. Brierley, 477 F.2d 785, 789 (3d Cir. 1973)
(quoting Raines and McGowan). “[O]ne cannot sue for the deprivation of
another’s civil rights.” O’Malley, 477 F.2d at 789. “Only persons actually
deprived of their individual civil rights can redress such rights.” Id. at
789 n.2 (quoting United States v. Biloxi Mun. Sch. Dist., 219 F. Supp.
691, 694 (S.D. Miss. 1963), aff’d, 326 F.2d 237 (5th Cir. 1964)). A
parent, not acting in a representative capacity, lacks standing to sue for
the deprivation of the civil rights of his or her children. Rabold v. “The
Syndicate”Monroe Cty., Pa. Charter, No. 3:06-cv-2474, 2007 WL
43988, at *1 (M.D. Pa. Jan. 4, 2007); Tyree v. Smith, 289 F. Supp. 174,
175 (E.D. Tenn. 1968).
Here, it is clear from the complaint that the plaintiff is suing the
defendant school district for alleged violations of the rights of her minor
children, S.S. and B.S., under Title IX. The plaintiff, in counts I and II
of the complaint, seeks damages on behalf of her minor children S.S.
and B.S. (Doc. 1-2, at 7-9). Moreover, the complaint specifically states
that both S.S. and B.S. are represented by their mother, the plaintiff.
(Id. ¶¶ 2, 3). Thus, we find that the defendant’s 12(b)(1) motion lacks
merit and must be denied.
The plaintiff has sufficiently pled valid Title IX
The defendant argues that the plaintiff has failed to plead valid
Title IX claims. Title IX of the Education Act provides with certain
exceptions that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving federal financial assistance.” 20 U.S.C. § 1681(a).
plaintiff has set forth claims for student-on-student sexual harassment
The plaintiff has sufficiently pled a valid
claim for student-on-student sexual
The defendant maintains that the plaintiff has failed to set forth a
valid Title IX claim for student-on-student sexual harassment.
It is settled that a funding recipient’s deliberate indifference to
sexual harassment of a student by another student can constitute sex
discrimination under Title IX. Davis v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 643 (1999). For a school district to be held liable for a claim of
student-on-student sexual harassment under Title IX, a plaintiff must
establish that: (1) the defendant receives federal funds; (2) sexual
harassment occurred; (3) the harassment occurred under ‘circumstances
wherein the recipient exercise[d] substantial control over both the
harasser and the context in which the known harassment occur[red], (4)
the funding recipient had ‘actual knowledge’ of the harassment; (5) the
funding recipient was ‘deliberately indifferent’ to the harassment; and
(6) the harassment was ‘so severe, pervasive, and objectively offensive
that it [could] be said to [have] deprive[d] the victims of access to the
educational opportunities or benefits provided by the school.’ Davis, 526
U.S. at 645, 650.
Here, the defendant only contends that the complaint fails to
allege facts to constitute deliberate indifference. The defendant asserts
that the plaintiff failed to set forth sufficient facts to establish that the
defendant’s response to the alleged harassment is clearly unreasonable
in light of the known circumstances.
A finding of deliberate indifference depends on the adequacy of a
school district’s response to the harassment. Zeno v. Pine Plains Cent.
Sch. Dist., 702 F.3d 655, 666 (2d Cir. 2012); accord Doe v. Bellefonte
Area Sch. Dist., 106 Fed. App’x 798, 799 (3d Cir. 2004) (‘The relevant
inquiry for purposes of evaluating whether [a school district] was
deliberately indifferent to known circumstances of harassment is to
review its response to reported incidents of harassment.’). To constitute
deliberate indifference, the recipient’s response to the harassment must
be ‘clearly unreasonable in light of the known circumstances.’ Davis,
526 U.S. at 648.
A review of the complaint reveals that it adequately sets forth a
factual basis to support the deliberate indifference requirement.
review of the school district’s response to the harassment reflects the
(1) the alleged sexual assault was discovered by the
kindergarten teacher who made no written findings. (Doc. 1-2 ¶ 12); (2)
the school’s principal informed the plaintiff of the incident and publicly
stated he “wasn’t sure anything happened” (Id. ¶ 10); (3) four days
after the incident, the plaintiff and her mother met with the principal,
the kindergarten teacher, and a school counselor (Id. ¶ 14); (4) at that
meeting, the principal prevented the kindergarten teacher and school
counselor from answering any questions (Id.); (5) the two boys received
a 3-day suspension (Id.); (6) the school counselor suggested that S.S. be
transferred to another school (Id. ¶ 15); (7) the principal suggested that
one of the boys, A.K., be put in another kindergarten classroom (Id.);
and (8) a day after the meeting, when confronted with the possibility
that the older brothers of A.K. and L.C., may have contact with B.S.,
S.S.’s older sister, the school officials stated they had “never thought of
that” (Id. ¶ 17).
The plaintiff has set forth a plausible showing of
entitlement to relief for sexual harassment under Title IX. Thus, the
defendant’s motion to dismiss this claim will be denied.
The plaintiff has set forth a viable claim for
retaliation under Title IX.
The defendant urges us to dismiss the retaliation count because
the complaint is devoid of facts sufficient to demonstrate retaliation.
Although the statute does not specifically mention retaliation, it is
settled that retaliatory conduct is within the broad prohibition of
‘discrimination’ made unlawful by Title IX. Jackson v. Birmingham Bd.
of Educ., 544 U.S. 167, 174, (2005). To establish a prima facie case of
retaliation, a plaintiff must show (1) that he or she engaged in protected
activity; (2) defendant had knowledge of the protected activity; (3)
adverse school-related action was taken against plaintiff; and (4) a
causal connection between the protected activity and the adverse action.
Yan v. Penn State Univ., 529 Fed. App’x 167, 171 (3d Cir. 2013) (citing
Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91
(2d Cir. 2011).
Here, the plaintiff alleged that she complained to the school
district and the local police about the sexual assault to S.S. (Doc. 1-2 ¶
13). As part of its response, the school district recommended that S.S.
and B. S. change school locations from Schuyler Avenue to Dana Street.
(Id. ¶ 47). However, the counselors at Children and Youth Services
advised against moving S.S. as she would feel she did something wrong.
(Id. ¶ 44). Despite the plaintiff’s request to investigate the situation,
the school district suggested that S.S. be transferred. These allegations
are sufficient to defeat the defendant’s motion to dismiss on the
The plaintiff has not pled a cause of action under 42
U.S.C. § 1983 against the defendant.
Count III of the complaint is the plaintiff’s claim under 42 U.S.C.
§ 1983 alleging that the truancy charges filed by the defendant against
the plaintiff were brought without reasonable cause or justification.
The defendant contends that Count III fails to state a claim upon which
relief can be granted. We agree.
Section 1983 provides in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 does not create substantive rights, but
instead provides remedies for rights established elsewhere. City of
Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983
claim, the plaintiff must establish that the defendant, acting under
color of state law, deprived the plaintiff of a right secured by the United
States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141
(3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil
rights complaint must state the conduct, time, place, and persons
responsible for the alleged civil rights violations. Evancho v. Fisher, 423
F.3d 347, 353 (3d Cir. 2005).
“On its face, § 1983 makes liable ‘every person’ who deprives
another of civil rights under color of state law.” Burns v. Reid, 500 U.S.
478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In
Monell v. Department of Social Services, 436 U.S. 658 (1978), the
Supreme Court of the United States established that municipalities and
other local governmental units are included among those “persons”
subject to liability under § 1983. Id. at 690. A school district may be
liable under Monell. McGreevy v. Stroup, 413 F.3d 359, 367-69 (3d Cir.
But “[u]nder Monell, a municipality cannot be subjected to
liability solely because injuries were inflicted by its agents or
employees.” Jiminez v. All American Rathskeller, Inc., 503 F.3d 247,
249 (3d Cir. 2007). Rather, a municipality can be liable under § 1983
only if the conduct alleged to be unconstitutional either “implements or
executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers” or is “visited pursuant
to governmental ‘custom’ even though such a custom has not received
formal approval through the body’s official decision-making channels.”
Monell, 436 U.S. at 690–91. “[I]t is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsible under § 1983.”
Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged
policy, attribute it to the [municipality] itself, and show a causal link
between execution of the policy and the injury suffered.” Losch v.
Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). The complaint
in this case does not identify any such policy or custom adopted or
promulgated by the Wyoming Valley West School District.
Accordingly, Count III in the complaint against the defendant
shall be dismissed for failure to state a claim.
Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is
vulnerable to dismissal for failure to state a claim, the district court
must permit a curative amendment, unless an amendment would be
inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d, 108 (3d
Cir. 2002). It is not clear that amendment would be futile with respect
to Count III of the plaintiff’s claim, nor is there any basis to believe it
would be inequitable. We will grant leave to the plaintiff to file an
An appropriate order follows.
s/ Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge
Dated: September 26, 2017
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