Hamilton et al v. Spriggle et al

Filing 141

MEMORANDUM (An Order in conformity with this Memorandum will follow as a separate docket entry.) Signed by Honorable Matthew W. Brann on 8/14/2013. (km)

Hamilton et al v. Spriggle et al

Doc. 141

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROLAND and CELESTE
HAMILTON, as parents and legal
guardians of K.H., a minor,
Plaintiffs,
v.
HEATHER SPRIGGLE,
SENECA HIGHLANDS
INTERMEDIATE UNIT 9,
NORTHERN POTTER SCHOOL
DISTRICT, RONALD MANCIA,
ANTHONY WATT,
MICHAEL MORGAN,
KEN SUTTER, ROBERT SMITH,
JEANETTE BARKER,
SANDRA BAKER,
CRYSTAL HEPFNER,
Defendants.

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Civil Action No. 4:09-CV-1801

(Judge Brann)

(Magistrate Judge Carlson)

MEMORANDUM
August 14, 2013
I. BACKGROUND
A. Procedural History
On September 17, 2009, Roland and Celeste Hamilton, parents of a minor1

It appears that K.H. is no longer a minor. I will discuss with plaintiffs,
during a telephone conference call that will be scheduled shortly, whether or not
1

1

Dockets.Justia.com

son, K.H., filed the instant action. ECF No. 1. Because the undersigned writes
only for the parties, and the matter is before the court via a thorough report and
recommendation from Magistrate Judge Martin C. Carlson, and his suggested
disposition will be adopted, although on a more narrow basis, I will conserve
judicial resources and adopt, and incorporate by reference, various aspects of the
report and recommendation. Thus, the procedural history of this matter is as set
forth by Magistrate Judge Carlson on pages 10-14 of his report and
recommendation. ECF No. 130. For the purposes of the instant memorandum and
accompanying Order, it is only salient to note that the matter is proceeding on the
Second Amended Complaint filed July 15, 2011. ECF No. 63. In addition, the
undersigned will adopt, without further comment, the undisputed portions of the
report and recommendation; and will only address the objections to the report and
recommendation.
B. Allegations in the Complaint and Undisputed Facts
As an initial matter, all facts are adopted from the report and
recommendation as set forth by Magistrate Judge Carlson. ECF No. 130, p 6-10.
K.H. is a largely non-verbal young man who was diagnosed as autistic and
mentally retarded. During the 2005-2006 school year, K.H. was a 13-, then 14-,

the case caption should be changed.
2

year-old student in the special education program in the Northern Potter
Elementary School in Ulysses, Pennsylvania. The Northen Potter School District
is a defendant, as is the Seneca Highlands Intermediate Unit 9, the entity that
operated the special education classroom in the Northern Potter Elementary
School. It is undisputed that K.H.’s special education teacher, defendant Heather
Spriggle, engaged in some nature and level of abuse of K.H, as she was convicted
of the summary offense of harassment of K.H. and the Commonwealth of
Pennsylvania’s Professional Standards and Practices Commission revoked
Spriggle’s professional educator certification.
Also named as defendants are Ronald Mancia, the director of special
education; Anthony Watt, the supervisor of special needs; Michael Morgan, the
school principal; Ken Sutter, a behavior specialist; Robert Smith, the
superintendant of schools; Jeanette Barker, a classroom aide; Sandra Baker, a
classroom aide; and Crystal Hepfner, a classroom aide.
According to Magistrate Judge Carlson, resolving any undisputed facts in
favor of the non-moving plaintiffs, the facts are as follows.
Spriggle demeaned and abused K.H., including through the use of
inappropriate physical force, despite the availability of less restrictive
measures and techniques. The evidence documents a catalogue of cruelty
by Spriggle, a compelling pattern of abuse. Some of these instances of
allegedly abusive conduct included bending K.H.’s fingers until they
popped audibly and caused him to scream in pain; pulling his hair;
3

twisting his arms and bending them behind his back; grabbing and
throwing K.H.; pulling and shoving him; throwing him violently into a
cubby area with such force that one or more aides was concerned he was
injured; pinching him; depriving him of food all day; and placing liquid
soap in K.H.’s mouth and holding it shut.
[The] sobering array of abuse [also included] sitting on his back while
he was laying on the floor; hauling him violently out of the room and
into the hall, using such force that he had red marks on his back;
throwing him into a cubby area with such explosiveness that it caused a
teacher’s aide to be concerned about K.H.’s neck; bending K.H.’s finger
back so hard that it made an audible popping noise, causing him to
scream in pain; pulling K.H.’s chair out from under him when he was
trying to sit down; twisting his arm forcefully behind his back; pulling
his hair; depriving him of food all day; and filling his mouth with liquid
soap and holding his mouth closed.
Beginning in November 2005, the three aides working in Spriggle’s
classroom became sufficiently alarmed at her conduct toward K.H. and
her manner of running her classroom, that they reported their concerns
to Ken Sutter and Anthony Watt. Ronald Mancia was informed at this
time about some of the allegations about Spriggle’s conduct and
potential mistreatment of students. Although there is some evidence that
Mancia looked into these allegations, it appears that the claims were
discounted, and it appears that little was done in response.
[Moreover,] there is also evidence to show that [Mancia and Watt] had
previously been made aware of Spriggle’s allegedly assaultive conduct
towards another special education student, [T.J.] and that an
investigation into her conduct was undertaken that resulted in the
intervention of officials, pictures of injuries allegedly caused by Spriggle
[bruises on his body], and a letter being placed in Spriggle’s personnel
file - but no additional precautions were taken to protect K.H. and other
students who were placed under Spriggle’s care and instruction in the
intermediate classroom during 2005-2006.
A former employee of the intermediate unit, Amy Hathaway, testified
that she met frequently with Watt about her concerns after leaving
4

Spriggle’s classroom, and that she was concerned about leaving the
students alone with Spriggle.
When Spriggle’s conduct remained a matter of concern into 2006, the
aides brought further concerns to the attention of Principal Morgan,
Anthony Watt and Ronald Mancia in February and March 2006. In
March, Mancia and Watt conducted interviews with Spriggle and the
teacher’s aides about the allegations. Mancia also interviewed [two
others who were present in the classroom at times], who reported
concerns about Spriggle’s conduct in the classroom, although they did
not claim to witness actual physical abuse of students. Ultimately
Mancia determined that no abuse had occurred, and credited Spriggle’s
account in favor of the allegations made by three aides who worked in
her classroom.
The evidence shows that although complaints were made to Ronald
Mancia and Anthony Watt in the fall of 2005, there was no intervention
in Spriggle’s classroom, and the evidence suggests that Mancia
determined that the aides’ complaints were not credible or cause for
concern at that time...[I]n February, 2006, these teacher’s aides reported
their concerns not only to Ronald Mancia, who was responsible for the
intermediate unit, but also to Michael Morgan, the principal of the school
in which Spriggle worked, and to Anthony Watt.
The factual record [shows that similar complaints] had been raised by the
family of another autistic student in Spriggle’s classroom, T.J.
These complaints were not isolated; to the contrary, all three teacher’s
aides reported to one or more of the school district and intermediate unit
defendants about their concerns on more than one occasion, starting in
the fall of 2005 and continuing into the second semester of school in
February 2006. Additional intermediate unit staff spoke with Ronald
Mancia in March 2006, and shared with him their concerns about
Spriggle, which corroborated some complaints about her conduct in the
classroom and her gruff treatment of the special needs children she
taught, if falling short of claiming that she was actually abusing children.
Other staff brought their concerns to Principal Morgan, who expressed
confusion about what he could do, and who declined the aides’ request
5

that he come take the simple step of looking at Spriggle’s classroom
himself.
[Either Mancia or Watt, or both, prepared a document]...with...new rules
...that there was to be no further student discipline unless two school
personnel were present. Notably, the document also directed the
classroom personnel to report to Michael Morgan and Anthony Watt any
form of “abuse” that was witnessed.
Notably, none of the supervisory officials within the school district or
the intermediate unit ever contacted K.H.’s parents about the allegations,
or about the investigation into Spriggle’s treatment of students in her
classroom. In fact, staff were forbidden from communicating their
concerns to K.H.’s parents, shrouding this suspected abuse in silence.
Even though K.H. was largely non-verbal, and thus apparently had little
ability to inform his parents about his experience in school, Mancia
instructed the teacher’s aides that they were not to contact the parents
about the investigation. Uninformed during the school year, K.H.’s
parents observed him developing an increasingly strong aversion to
school in 2005-2006, including negative reaction to discussing school
and increased aggression.
Following the end of the school year, one of the teacher’s aides, Jeanette
Barker, felt compelled to resign. In doing so, she wrote a letter to
officials with the intermediate unit, the superintendent, and members of
the Northern Potter School District in which she made a number of
allegations about Spriggle’s unprofessional conduct, and her alleged
mistreatment of students, among other matters. After writing this letter,
Barker called Celeste H[amilton] to inform her about [Barker’s]
resignation, and to inform [Hamilton] personally about [Barker’s]
concerns over how K.H. had been treated during the school year.
Following receipt of this information in the summer, Celeste H[amilton]
brought the matter to the attention of law enforcement. A criminal
investigation was later undertaken, and Spriggle was charged and
convicted of the summary offense of harassment, given probation, and
ordered to perform community service.
Later, following an investigation by state officials, the Commonwealth
6

of Pennsylvania Professional Standards and Practices Commission
issued an order on March 12, 2012, revoking Heather Spriggle’s
professional educator certification.
Report and Recommendation, ECF No. 130 at 7-10; 27-30; 38-40; 44; 53; 58.
(internal citations omitted).
Spriggle has made no effort to defend this action. The summons was
returned as executed by the process server, and signed by Spriggle on November
17, 2009. Spriggle has not had an attorney file an appearance on her behalf, nor
has she answered the complaint, nor attempted to defend this action. Spriggle may
conclude by her conduct to date that she can escape the long-arm of the law simply
by ignoring the liability that may be imposed on her. She is wholly incorrect.
Plaintiffs should be prepared to discuss during the telephone conference call that
will be scheduled shortly, what steps to take against Spriggle as this matter
proceeds forward.
The Second Amended Complaint contains eight counts. July 15, 2011, ECF
No. 63. Count I is alleges a violation of Section 504 of the Rehabilitation Act
against the two institutional defendants. Count II alleges a violation of 42 U.S.C. §
1983 against all nine individual defendants; specifically plaintiffs allege that
defendants are liable under the “state created danger” theory of substantive due
process liability. Count III alleges a violation of Article I, Section 26 of the
7

Pennsylvania Constitution against the two institutional defendants. Counts IV
through VII are allegations of Negligence, Assault, Battery and Intentional
Infliction of Emotional Distress, respectively, all against Spriggle. The final
Count, Count VIII, is a demand for punitive damages against all nine individual
defendants.
B. Report & Recommendation
On February 7, 2013, Magistrate Judge Carlson issued a 79-page report and
recommendation. ECF No. 130. The report and recommendation will be adopted
in its entirety, but, as noted above, on narrower grounds. The report and
recommendation thoroughly explores the nuances of the body of law applicable to
the instant action. The parties have filed multiple objections, and should feel
assured that the undersigned has expended a great deal of time examining both the
report and recommendation and the objections. As I will explain below, I have
found no flaw in Magistrate Judge Carlson’s recommended disposition of the
summary judgment motions.
Magistrate Judge Carlson recommended that the motions for summary
judgment from the three classroom aides, Sandra Baker, Jeanette Barker and
Crystal Hepfner be granted; the motions for summary judgment from Ken Sutter
and Robert Smith be granted; and the motions for summary judgment from the two
8

institutional defendants be granted. These recommended dismissals result in the
recommended dismissal of Counts I and III of the second amended complaint.
Finally, Magistrate Judge Carlson recommended that the motions for summary
judgment from Ronald Mancia, Anthony Watt and Michael Morgan be denied.
C. Objections to the Report & Recommendation
When objections are filed to the report and recommendation of a magistrate
judge, the district court makes “a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objections are
made.” 28 U.S.C. § 636(b)(1)(C); United States v Raddatz, 447 U.S. 667, 674-75;
100 S.Ct. 2406; 65 L. Ed. 2d 424 (1980). The court may accept, reject or modify,
in whole or in part, the magistrate judge’s findings or recommendations. Id.
Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits
whatever reliance the district court, in the exercise of sound discretion, chooses to
place on a magistrate judge’s proposed findings and recommendations. Raddatz,
447 U.S. at 675; see also Mathews v Weber, 423 U.S. 261, 275 (1976); Goney v.
Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Plaintiffs object to the report and recommendation for three reasons. First,
plaintiffs object to the recommended dismissal of Sandra Baker, Jeanette Barker,
Crystal Hepfner and Ken Sutter (but did not object to the recommended dismissal
9

of Robert Smith), arguing that there are contested issues of material fact remaining
respecting each of these four defendants. Next, plaintiffs argue that the claim
pursuant to Section 504 of the Rehabilitation Act does not require exhaustion of
administrative remedies. Lastly, plaintiffs argue that their motion to supplement
should be granted.
Ronald Mancia, Anthony Watt and Michael Morgan object to the
recommendation that the § 1983 state-created danger claim be able to proceed as to
them because they argue there was no serious injury to K.H., and that there is no
evidence of any affirmative acts by these Defendants to increase K.H.’s exposure
to danger. In addition, these Defendants suggest that they should be entitled to the
protection of a qualified immunity defense.
II. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment is appropriate when first, there are no material facts in
dispute; and second, one party is entitled to judgment as a matter of law. Int'l
Union, United Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248, 1252
(3d Cir. 1990) (citing Fed. R. Civ. Pro. 56(c)).
A district court may properly grant a motion for summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
10

with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). "Material facts" are those which might affect the
outcome of the suit. Id.
Regardless of who bears the burden of persuasion at trial, the party moving
for summary judgment has the burden to show an absence of genuine issues of
material fact. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir.
1996) (internal citations omitted). To meet this burden when the moving party does
not bear the burden of persuasion at trial, the moving party must show that the
evidentiary materials of record, if reduced to admissible evidence, would be
insufficient to carry the nonmovant's burden of proof at trial. Jalil v. Avdel Corp.,
873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814
F.2d 893, 896 (3d. Cir. 1987)); see Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). More simply put, a party moving for summary judgment who does not bear
the burden of persuasion at trial is not required to negate the nonmovant's claim,
but only point out a lack of evidence sufficient to support the nonmovant's claim.
Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d
11

1056, 1061 (3d Cir. 1991).
Once the moving party meets its burden of showing an absence of genuine
issues of material fact, the nonmoving party must provide some evidence that a
issue of material fact remains. Matushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The nonmoving party, however, cannot do so by merely
offering general denials, vague allegations, or conclusory statements; rather the
party must point to specific evidence in the record that creates a genuine issue as to
a material fact. Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel.
M.E., 172 F.3d 238, 252 (3d Cir. 1999).
B. Plaintiff’s Rehabilitation Act Claim
As Magistrate Judge Carlson completely and correctly discussed in his
report and recommendation, claims brought pursuant to the Rehabilitation Act
seeking relief also available under the IDEA, are required to exhaust all
administrative remedies as required under the IDEA. Report and
Recommendation, ECF No. 130 at 18-19 (internal citations omitted).
C. Plaintiff’s §1983 State Created Danger Theory of Liability Claim
In order for plaintiffs to prevail under § 1983 they must establish two
elements: first, that the conduct complained of was committed by a person acting
under color of state law; and second, that the conduct deprived the plaintiff of
12

rights, privileges, or immunities secured by the Constitution or laws of the United
States. See Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Defendants do
not dispute that the conduct complained of was committed by persons acting under
color of state law. Defendants dispute the second element that establishes a claim
under §1983, namely, they argue that plaintiff was not deprived of the rights,
privileges or immunities secured by the Constitution or laws of the United States.
Plaintiffs bring their § 1983 claim under the Fourteenth Amendment’s
substantive due process clause as a state created danger theory of liability claim.
The Third Circuit Court of Appeals accepted the state created danger theory of
liability as an actionable claim in this circuit in 1996. Because this is a relatively
recent development in Constitutional law, an examination of how the right was
developed is instructive.
In 1977, the United States Supreme Court addressed Florida’s corporal
punishment laws under the rubric of the Eighth Amendment’s cruel and unusual
punishment clause and under the Fourteenth Amendment’s procedural due process
clause. See Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711
(1977). Florida law authorized “paddling the recalcitrant student on the buttocks
with a flat wooden paddle measuring less than two feet long, three to four inches
wide, and about one-half inch thick.” Id. at 656. “The normal punishment was
13

limited to one to five “licks” or blows with the paddle and resulted in no apparent
physical injury to the student.” Id. at 656-657. Ingraham, an able-bodied junior
high school student was subjected to 20 plus licks with the paddle, which resulted
in his suffering from a hematoma that required medical attention. See id. at 657.
Another able-bodied student, Andrews, was struck on his arms twice, once
resulting in the loss of the full use of his arm for a week. See id.
In holding that corporal punishment does not violate the Eighth Amendment,
the United States Supreme Court stated that “[t]eachers may impose reasonable but
not excessive force to discipline a child.” Id. at 661. “[A] teacher or administrator
[may use such force as he or she] “reasonably believes to be necessary for (the
child’s) proper control, training or education.” Id. citing Restatement (Second) of
Torts § 147(2) 1965. The Court went on to state, “[e]xcept perhaps when very
young, the child is not physically restrained from leaving school during school
hours; and at the end of the school day, the child is invariably free to return home.”
Id. at 670. “Even while in school, the child brings with him the support of family
and friends and is rarely apart from teachers and other pupils who may witness and
protest any instances of mistreatment.” Id.
“All of the circumstances are to be taken into account in determining
whether the punishment is reasonable in a particular case.” Id. “Among the most
14

important considerations are the seriousness of the offense, the attitude and past
behavior of the child, the nature and severity of the punishment, the age and
strength of the child, and the availability of less severe but equally effective means
of discipline.” Id. “Public school teachers and administrators are privileged at
common law to inflict only such corporal punishment as is reasonably necessary
for the proper education and discipline of the child; any punishment going beyond
the privilege may result in both civil and criminal liability.” Id. at 670. The issue
here are Spriggle’s actions of going beyond the contours of corporal punishment.
No party is defending by arguing that what Spriggle did to K.H. was within the
realm of allowable corporal punishment. Thus, we need to understand what state
actions exceed the allowable limits.
In 1995, in distinguishing the contours of Ingraham from a prisoner’s civil
rights claim, the Supreme Court explained that “Ingraham [] addressed the rights
of schoolchildren to be free from arbitrary corporal punishment.” Sandin v.
Conner, 515 U.S. 472, 485, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). “Although
children sent to public school are lawfully confined to the classroom, arbitrary
corporal punishment represents an invasion of personal security to which their
parents do not consent when entrusting the educational mission to the state.” Id.
Eleven years after Ingraham, in DeShaney v. Winnebago County Dep’t of
15

Social Services, the United States Supreme Court held that the substantive due
process clause does not confer an affirmative duty on government employees to
protect those not in their custody. 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249
(1988). Joshua DeShaney was a four-year-old boy who was beaten so badly while
in his father’s custody that he was permanently brain damaged. Id. at 193.
Although the child protective services agency was aware of prior abuse and had
visited the home several times after complaints from the child’s mother, the
father’s girlfriend and emergency room employees, the Supreme Court held that
the social services agency was not liable to the child as “the harms Joshua suffered
occurred not while he was in the State’s custody, but while he was in the custody
of his natural father, who was in no sense a state actor.” Id. at 202.
DeShaney was instructive to the lower courts, both in what did not say and
in what it did say. The last line of the above paragraph was extrapolated by the
Circuit Courts to recognize a claim if the state acted to create the plaintiff’s danger
or made him more vulnerable to it. The Third Circuit Court of Appeals first
discussed the claim in D.R. v. Middle Bucks Area Vocational Technical School,
although they did not find that the facts of that case rose to the level of a state
created danger. 972 F.2d 1364 (3d Cir. 1992). The state-created danger theory of
liability was predicated upon the states’ affirmative acts that exposed plaintiffs to
16

danger. Id. at 1374.
Subsequently, in Kneipp v. Tedder, the Third Circuit Court of Appeals first
found a “factual background [that] support[ed] a finding that state actors created a
danger which deprived an individual of her Fourteenth Amendment right to
substantive due process.” 95 F.3d 1199 (3d Cir. 1996). In an earlier case the Third
Circuit suggested a four-part test for applying the state created danger theory, and
that four-part test, although it has been refined and modified through the years,
remains known as the Kneipp test. The elements as defined by Kneipp were:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) the state actor acted in willful disregard for the safety of the plaintiff;
(3) there existed some relationship between the state and the plaintiff;
(4) the state actors used their authority to create an opportunity that
otherwise would not have existed for the third party’s crime to occur.
Id. at 1208. This same basic framework remains the law today (and at the
time of the events at question in this action), with some refinement.
Over the years the Third Circuit has further refined each of these four
elements as follows:
Element 1 - The harm ultimately caused was foreseeable and fairly direct.
The first element “requires that the harm ultimately caused was a foreseeable
and a fairly direct result of the state’s actions.” Morse v. Lower Merion School
District, 132 F.3d 902, 908 (3d Cir. 1997).
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Element 2 - A state actor acted with a degree of culpability that shocks the
conscience;
The Third Circuit expanded the second element to include a “conscience
shocking” test after the United States Supreme Court clarified the standard of
culpability on the part of law enforcement for violating substantive due process in
a pursuit case. City of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L.
Ed. 1043 (1997). The Supreme Court wrote, “[w]e have emphasized time and
again that “t[he touchstone of due process is protection of the individual against
arbitrary action of government.” Id. at 845 (internal citations omitted). “Our cases
dealing with abusive executive action have repeatedly emphasized that only the
most egregious official conduct can be said to be “arbitrary in the constitutional
sense.”” Id. at 846 (internal citations omitted). “To this end, for half a century now
we have spoken of the cognizable level of executive abuse of power as that which
shocks the conscience.” Id. “While the measure of what is conscience shocking is
no calibrated yard stick, it does, as Judge Friendly put it, “poin[t] the way.” Id.
(internal citations omitted). “It should not be surprising that the constitutional
concept of conscience shocking duplicates no traditional category of common-law
fault, but rather points clearly away from liability, or clearly toward it, only at the
ends of the tort law’s spectrum of culpability.” Id. at 848. “Thus, we have made it
clear that the due process guarantee does not entail a body of constitutional law
18

imposing liability whenever someone cloaked with state authority causes harm.”
Id. “[We] have held that the Constitution does not guarantee due care on the part
of state officials; liability for negligently inflicted harm is categorically beneath the
threshold of constitutional due process.” Id. at 849 (internal citations omitted). “It
is, on the contrary, behavior at the other end of the culpability spectrum that would
most probably support a substantive due process claim; conduct intended to injure
in some way unjustifiable by any government interest is the sort of official action
most likely to rise to the conscience-shocking level.” Id. (internal citations
omitted). “Whether the point of the conscience shocking is reached when injuries
are produced with culpability falling within the middle range, following from
something more than negligence but “less than intentional conduct, such as
recklessness or ‘’gross negligence.’” Id. (internal citations omitted). “To be sure,
we have expressly recognized the possibility that some official acts in this range
may be actionable under the Fourteenth Amendment, and our cases have compelled
recognition that such conduct is egregious enough to state a substantive due
process claim [].” Id. “Rules of due process are not, however, subject to
mechanical application in unfamiliar territory.” Id. at 850. “Deliberate
indifference that shocks in one environment may not be so patently egregious in
another, and our concern with preserving the constitutional proportions of
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substantive due process demands an exact analysis of circumstances before any
abuse of power is condemned as conscience shocking.” Id. It is to be tested by
“an appraisal of the totality of facts in a given case.” Id. “As the very term
“deliberate indifference” implies, the standard is sensibly employed only when
actual deliberation is practical.” Id. at 851 (internal citations omitted).
As a result, the Third Circuit developed four elements to determine what is
conscience shocking in a school environment.
A) Was there a pedagogical justification for the use of force?;
B) Was the force utilized excessive to meet the legitimate objective in
this situation?;
C) Was the force applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of
causing harm?; and
D) Was there a serious injury?
Gottlieb v. Laurel Highlands School District, 272 F.3d 168, 173 (3d Cir. 2001).
The Third Circuit further explained that the amount of time the state actor
has to deliberate is also instructive to determine when his or her actions are
conscience shocking. Where an official does not need to make a decision in the
heat of the moment, but still must act with some urgency, the mental state
necessary is “proof that the defendants consciously disregarded, not just a
substantial risk, but a great risk that serious harm would result.” Rivas v. City of
Passaic, 365 F.3d 181, 195-95 (3d Cir. 2004) (internal citations omitted).
20

Element 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.
Morse, supra, held that the plaintiff must be a foreseeable victim. 132 F.3d
at 912. “[I]t is not enough to show that the state increased the danger of harm from
third persons; the § 1983 plaintiff must also show that the state acted with the
requisite degree of culpability in failing to protect the plaintiff.” Id. at 910 (internal
citations omitted). “In other words, the state’s actions must evince a willingness to
ignore a foreseeable danger or risk.” Id.
Element 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.
Morse, supra, also clarified the fourth element, stating “the dispositive factor
appears to be whether the state has in some way placed the plaintiff in a dangerous
position that was foreseeable, and not whether the act was more appropriately
characterized as an affirmative act or an omission.” Morse, 132 F.3d at 915. This
element asks “whether the state actor used his or her authority to create an
opportunity, which otherwise would not have existed, for the specific harm to
occur.” Rivas, 365 F.3d at 197.
The Third Circuit has expanded on and clarified the Kneipp test further, in
cases cited to by Magistrate Judge Carlson and the parties. Nevertheless, the
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remaining Defendants also raise a qualified immunity defense. It is rather
disingenuous of Defendants to argue that they are entitled to a qualified immunity
defense based on Magistrate Judge Carlson’s method of analysis when they
themselves argue their defense based on a body of case law that was developed
after the time of the events in question. Thus, the undersigned is only considering
what was firmly established law during the time of the events in question, namely
the 2005-2006 school year, and will disregard the body of case law that the parties
cited to with regard to the §1983 claim that had been decided after the time of the
events in question.
III. DISCUSSION
A. Plaintiffs’ First Objection: Issue of Material Fact as to Baker, Barker,
Hepfner and Sutter
In their brief opposing the report and recommendation, plaintiffs agree with
Magistrate Judge Carlson that the deliberate indifference test from Lewis, supra, is
the correct standard to apply, but argue that he came to the incorrect conclusion as
to these four defendants. Pl.’s Objections, February 21, 2013, ECF No. 132.
Specifically, plaintiffs argue that Magistrate Judge Carlson overlooked conflicting
evidence on material facts and that he also erred by concluding that the three
classroom aides and Sutter reported the abuse of K.H. in a timely fashion.
According to Magistrate Judge Carlson, it is undisputed that Baker, Barker
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and Hepfner all “reported their concerns about Spriggle’s conduct to officials with
the school district and the intermediate unit.” Report and Recommendation, ECF
No. 130 at 42.
In October or November 2005, Baker [along with Barker] informed
Sutter, that Heather Spriggle was bending students’ arms, pulling their
hair, and bending their fingers...Baker reported to Mancia, Watt, and
Morgan that [she] continued to be concerned about the way in which
Spriggle was treating her students.
Report and Recommendation, ECF No. 130 at 44-45.
Jeanette Barker testified that in October or November 2005, she and
Sandra Baker informed Ken Sutter, that Heather Spriggle was bending
students’ arms, pulling their hair, and bending their fingers, which
alarmed the aides. Following the end of the school year...Barker, felt
compelled to resign. In doing so, she wrote a letter to officials with the
intermediate unit, the superintendent, and members of the Northern
Potter School District in which she made a number of allegations about
Spriggle’s unprofessional conduct, and her alleged mistreatment of
students, among other matters. After writing this letter, Barker called
Celeste H[amilton] to inform her about [Barker’s] resignation, and to
inform [Hamilton] personally about [Barker’s] concerns over how K.H.
had been treated during the school year
Report and Recommendation, ECF No. 130 at 9-10; 44-45 (internal citations
omitted).
Crystal Hepfner, who began as a teacher’s aide in Spriggle’s classroom
in October 2005, claims that she first reported her concerns to Anthony
Watt in November 2005, approximately one month after joining the
classroom, although it is not clear whether Hepfner was merely reporting
verbal absue at that time and withholding of food from K.H., or whether
she had also observed pinching and other physical abuse at this time.
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Hepfner testified that notwithstanding this report, she felt that nothing
happened as the result of this meeting with Anthony Watt. Hepfner also
testified that she became further concerned about student abuse by
Spriggle, and brought their concerns to the attention of Michael Morgan,
and with both Ronald Mancia and Anthony Watt in February 2006.
During her meting at this time with Mancia and Watt, Hepfner informed
these officials that Spriggle had bent K.H.’s finger painfully, that she
engaged in name calling of the students, that she pinched and twisted her
pupils’ skin, that Spriggle had struck a child, that she had thrown K.H.
into a cubby area, and that she generally conducted herself like “a bully”
in the classroom.”
Report and Recommendation, ECF No. 130 at 43-44 (internal citations omitted).
It is also undisputed that
[T]wo of the aides informed [Ken Sutter] about their concerns in
November 2005, [he] promptly notified Ronald Mancia about the aides’
report to him...Armed with this information, Sutter promptly advised
Ronald Mancia about what Baker and Barker had told him, and Mancia
acknowledged during his deposition testimony that Sutter had informed
him about the alleged incidents involving Spriggle’s treatment of the
children in her classroom...Sutter had no supervisory responsibilities
with respect to Spriggle.
Report and Recommendation, ECF. No. 130 at 41-42; 44-46.
Plaintiffs assert that Hepfner was deliberately indifferent and consciously
disregarded the risk of harm to K.H. because she noticed th harm to K.H. in
October or November of 2005 but did not report one incident to Watt until
November of 2005 and did not report the bulk of the abuse until February 2006 to
Morgan, Mancia and Watt. Watt disputes that Hepfner told him of any abuse in
November 2005, that he was not advised of any of the incidents until February
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2006. Plaintiffs further argue that Baker and Barker were deliberately indifferent
and consciously disregarded the risk of harm to K.H. because they did not report
the abuse until February 2006. Plaintiffs also assert that Sutter was deliberately
indifferent and consciously disregarded the risk of harm to K.H. because he claims
he reported the abuse to Mancia, who denies this.
Plaintiffs’ argument with respect to the three teachers aides can be
summarized as follows. Plaintiffs believe Hepfner, Baker and Barker should be
found to be deliberately indifferent by this Court because they did not immediately
report the abuse by Spriggle pursuant to Pennsylvania’s mandatory reporter law.
An alleged failure to act pursuant to Pennsylvania’s statutes does not, however,
automatically give rise to a Constitutional violation under § 1983. See, e.g., D.R. v.
Middle Bucks Area Vocational Technical School, 972 F.2d 1364, (3d Cir. 1992)
(failure to report abuse pursuant to 23 Pa.C.S.A. §§ 6311 and 6312 is insufficient
to state a § 1983 claim - § 1983 liability arises only from a violation of federal
statutory or constitutional rights under color of state law); and see Brown v.
Grabowski, 922 F.2d 1097, 1116 (3d Cir. 1990) (police officer’s failure to advise a
domestic abuse victim of her rights under New Jersey’s Domestic Violence Act did
not amount to a Constitutional violation).
Although Hepfner, Baker and Barker did not act immediately, the abuse was
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not patently past the level of acceptable corporal punishment, at least immediately;
one instance of abuse may have been found to be acceptable corporal punishment.
It was actually the repeated nature of the unnecessary abuse of a voiceless young
man over the passage of time that caused this case to rise to the level of conscience
shocking behavior.
In hindsight, the teacher’s aides could have spoken up sooner. But they
certainly did not act with deliberate indifference to K.H. All three were subordinate
to Spriggle and could not control how she managed her students. Because of their
subordinate positions, all three went to those whom they did believe to be superior
to Spriggle in terms of position of authority within the school system. Barker even
went so far as to disobey the direct orders of her superiors and blew the whistle, so
to speak, to K.H.’s mother.
The three women may not have acted with sufficient speed to satisfy
plaintiffs, but their lack of swiftness certainly does not rise to the level of
deliberate indifference. Their repeated reporting to their superiors actually
indicates the opposite - that they believed there was a risk of harm to K.H. and that
they attempted, multiple times, to report it to those they thought were in a position
of power to stop Spriggle’s abuse of K.H.
Sutter argues that his involvement does not rise to the level of conscience
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shocking behavior. It is undisputed that he was approached one time, early on in
the school year. While Sutter claims that he immediately told Mancia, however
Mancia disputes this and argues that he was only first made aware of the abuse in
February 2006. Once again, even if the disputed fact is resolved in plaintiff’s
favor, and Sutter did neglect his duties as a mandatory reporter under Pennsylvania
law, Magistrate Judge Carlson was correct in determining that this did not rise to a
conscience shocking constitutional violation. In examining the four part test set
forth by the Third Circuit, a reasonable jury would not be able to find that Sutter is
liable based on the state created danger theory of liability.
B. Plaintiff’s Second Objection: Exhaustion of Section 504 of the
Rehabilitation Act Claim
In support of their objections, plaintiffs cite to Vicky M. v. Northeaster
Educational Intermediate Unit, for the proposition that they did not have to
exhaust their Rehabilitation Act claim. 689 F. Supp. 2d 721 (M.D. Pa. 2009)
(Caputo, J.). Plaintiffs’ reliance on Vicky M. is misguided. Although Vicky M.
does contain a note that that case did not require exhaustion, that sentence is
excerpted from a Third Circuit Court of Appeals case in which that court said that
no further exhaustion is required of Rehabilitation Act claims beyond what is
required by the IDEA. Jeremy H. v. Mount Leb. Sch. Dist. 96 F.3d 272, 281-282
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(3d Cir. 1996) (overruled on other grounds). The Third Circuit did not say that
exhaustion is not required; in fact, the settled law is precisely the opposite.
C. Plaintiff’s Third Objection: Motion to Supplement
After the motions for summary judgment were ripe, but not yet disposed of,
plaintiffs filed a Motion to Supplement. November 13, 2012, ECF No. 122.
Plaintiffs requested leave to supplement their briefs opposing summary judgment
to include the Memorandum and Order from the Commonwealth of Pennsylvania’s
Professional Standards and Practices Commission, which revoked Spriggle’s
professional educator certification for abusing K.H. and other students. Both
Magistrate Judge Carlson and the undersigned have accepted the Motion to
Supplement in part, as we have both taken judicial notice of the revocation of
Spriggle’s professional educator certification.
The Memorandum and Order attached to the motion, ECF No. 122-1,
Exhibit 1 at pages 2-6 describes only Spriggle’s conduct. Plaintiffs were
requesting the motion to supplement to give them the opportunity to investigate
further what information the Department of Education has about the other the
defendants knowledge of Spriggle’s actions.
Magistrate Judge Carlson did not err in denying the motion to supplement.
Counts I and III both failed as a matter of law, regardless of the facts.
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Additionally, whatever this report may find will not change the decision of the
undersigned regarding Sutter, Smith, Barker, Baker and Hepfner. Any additional
facts in the report applicable to Mancia, Watt and Morgan will most likely be
admissible at trial regardless.
D. Mancia, Watt and Morgan’s Objections: Serious Injury to K.H. and
Affirmative Acts by These Defendants
Mancia and Watt argue that the report and recommendation of Magistrate
Judge Carlson required only a showing of conscience shocking behavior, and not
also a showing of serious injury. It is further advanced that Magistrate Judge
Carlson created new constitutional rights and that Mancia and Watt should thus be
granted qualified immunity. Additionally, Mancia and Watt argue that there is no
evidence showing affirmative acts by Mancia or Watt that increased K.H.’s
exposure to danger from Spriggle.
Mancia, Watt and Morgan all misused their authority in such a way that they
could be found by a jury to have committed affirmative acts. Mancia instructed the
teacher’s aides that they were not to contact the parents about the investigation.
Mancia and Watt looked into the allegations, with knowledge of prior allegations,
and chose to actively suppress the allegations of abuse of K.H. by only placing a
letter in the file and sending an interoffice memorandum to staff. Morgan also
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actively suppressed the allegations by telling his staff he could not act and as part
of the memorandum’s directive that alleged abuse should be reported to him and
Watt. In other words, the directive from all three was to suppress allegations of
abuse by keeping the allegations in house instead of alerting K.H.’s parents or the
police.2
The Court has given considerable thought to the question of whether or not
K.H. suffered a serious injury at the hands of Spriggle. The result is so far from
either end of the spectrum of obvious decisions, that I believe it is a fact question
that must be submitted to a jury.
I find that a reasonable jury could come to the conclusion that there was no
serious injury. K.H. did not die, require hospitalization, had no bones broken, nor
was he out of school for any length of time due to the abuse by Spriggle. On the
other hand, K.H. is not an able-bodied, mature teenager who could report the abuse
to his parent or authorities. K.H. was a severely disabled boy who could not speak.
K.H.’s only verbalization of the abuse was his ability to scream out in pain. The
abuse he suffered at the hands of Spriggle he was forced to endure without

In addition, one or more of the three used their authority to keep Spriggle on
the job in the special education classroom. Because the undersigned does not know
which of the three had this authority, I am not including it in my analysis, but one
or more of the three actively kept a teacher with a history of reports of abuse in a
classroom containing students without the ability to protect themselves.
2

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recourse. A reasonable jury could certainly come to the conclusion that given the
totality of the circumstances and, the repeated, prolonged abuse that K.H. suffered
did cause him serious injuries.
As to the assertion that these defendants should be granted qualified
immunity based on Magistrate Judge Carlson’s report and recommendation, the
undersigned respectfully disagrees. Saucier v. Katz mandated a two-step analysis
concerning qualified immunity: first, taken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s conduct violated a
constitutional right; and second whether that right was clearly established. 533
U.S. 194, 201 (2001). “The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Id.
at 202. The United States Supreme Court held that Saucier’s “rigid order of
battle” is not a mandatory requirement. Pearson v. Callahan, 129 S.Ct. 808 (2009).
Lower courts can use their discretion to decide which of the two prongs to consider
first. Id. at 818. The Supreme Court has stated that if the law is firmly established,
the qualified immunity defense should normally fail because a reasonably
competent official should know the law governing his conduct. Harlow v.
Fitzgerald, 457 U.S. 800, 818-19 (1982).
I believe that I have sufficiently narrowed the holding of Magistrate Judge
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Carlson’s report and recommendation in such a way that the qualified immunity
defense must fail. The law regarding the state created danger theory of liability
was firmly established during the time of the events in question. In addition, the
undersigned has delineated the acts that each of the three remaining school officials
individually committed to sustain an allegation that each individually violated
K.H.’s rights.3

IV. CONCLUSION
The report and recommendation of Magistrate Judge Carlson will be adopted
in its entirety.
Plaintiff’s Motion to Supplement will be denied.
Counts I and III will be dismissed, as will defendants Highlands
Intermediate Unit 9, the Northern Potter School District, Ken Sutter, Robert Smith,
Jeanette Barker, Sandra Baker and Crystal Hepfner.
A separate Order will issue shortly for purposes of scheduling a telephone

Because the denial of a qualified immunity defense will be immediately
appealable, I expect defendants to be prepared to discuss on the upcoming
conference call whether or not they will be appealing this decision so that a trial
date may be fixed accordingly.
3

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conference call to set the case for trial, as the action is proceeding against Ronald
Mancia, Anthony Watt and Michael Morgan on Counts II and VIII; and against
Heather Spriggle on Counts II, IV, V, VI, VII and VIII.
An appropriate Order in accordance with this Memorandum will follow.

BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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