Swanger et al v. Warrior Run School District et al

Filing 50

MEMORANDUM For the abovementioned reasons, the Court will grant in part and deny in part Defendants' Motion to Dismiss. (Doc. 41}. The Court will deny without prejudice absolute immunity to individual School Defendants under the Coverdell Act on Count III. The Court will not dismiss Count III (§ 1983 substantive due process claim) based on astate-created danger theory, but it will reject the special relationship theory as a basis for liability on the count. The Court will deny without prejudice immunity to individual School Defendants under the PSTCA on Count IV (breach of fiduciary duty claim). The Court will deny without prejudice the motion to dismiss the claim for compensatory damages under Section 504 of the RA (Count I). Fin ally, the Court will dismiss the claim for punitive damages against all individual School Defendants in their official capacities but will deny without prejudice the motion to dismiss punitive damages with respect to their personal capacities.Signed by Honorable Robert D. Mariani on 6/25/12. (jfg)

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ELAINE AND VICTOR SWANGER,
as parents and legal guardians of
Bobbie Jo Swanger, and BOBBIE JO
SWANGER
Plaintiffs

v.

4:11·CV·894
(JUDGE MARIANI)

WARRIOR RUN
SCHOOL DISTRICT, et al.,
Defendants
I. Introduction

Before the Court is a Motion to Dismiss by Defendants Cross, Barenzetti, Osenga,
and Del Gotto (Doc. 41). For the reasons that follow, the Court will grant in part and deny in
part Defendants' motion.
II. Factual Allegations

Plaintiffs Elaine and Victor Swanger bring suit against Defendants on behalf of their
daughter, Plaintiff Bobbie Jo, a special needs student with a learning disability. (Am.
CampI., at mT 1,20). Defendant Warrior Run School District ("WRSDtl) is a recipient of
state and federal funds. (Id. at 1f 6). Defendants Cross and Barenzetti are the Principal and
Assistant Principal, respectively, at Bobbie Jo's school, Warrior Run High School ("WRHS").
(Id. at mT 4-5). Defendants Osenga and Del Gotto are Bobbie Jo's teachers in her Life Skills

classes. (/d. at mT 7-8). Defendants Cross, Barenzetti, Osenga, and Del Gotto (collectively,
"School Defendants") are being sued in their individual and official capacities. (Id. at mT 4­

8). Plaintiffs also sue WRSD and individual adult defendant, Duane Mattison ("Mattison"),

also aspecial needs student. (/d. at ~~ 6, 9).
Bobbie Jo and Mattison were enrolled in the same Life Skills classes at WRHS. (ld.
at ~ 20). Plaintiffs allege that Defendants Osenga and Del Gotto "routinely seated
Defendant Mattison beside Bobbie Jo Swanger at a table or behind her in a desk in the
classrooms, even when the lights were out." (Id. at ~ 21). As a result of Bobbie Jo's
proximity to Mattison, she was subject to unwanted sexual touching and harassment by
Mattison on numerous occasions, including "Mattison placing his hands inside Bobbie Jo
Swanger's shirt on her breasts, placing his hands down her pants, exposing his genitals to
her, and asking her to 'suck his dick.'" (Id. at ~ 22). On March 14,2011, Defendant
Barenzetti informed Bobbie Jo's parents that Defendant Mattison had touched Bobbi Jo
inappropriately in Defendant Del Gotto's classroom and that "Mattison was known to have
previously acted out sexually towards another student at Warrior Run High SchooL" (Id. at
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24). The Amended Complaint does not state how the incident came to Defendant

Barenzetti's attention or when Mattison's previous misconducts occurred. Plaintiffs allege
that Mattison engaged in similar conduct towards Bobbie Jo in other classes, (Id. at ~ 23)
and despite the teachers' knowledge of Mattison's history, they "continued to seat
Defendant Mattison near Bobbie Jo Swanger in the classroom." (Id. at ~ 27). Though
Defendants Osenga and Del Gotto were present when Mattison harassed Bobbie Jo, an
incident which was witnessed by at least one other student (Id. at ~ 26), the individual

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School Defendants are alleged to have "willfully failed to register reports or to make

referrals" in accordance with state law "conceming Defendant Mattison's abuse of Bobbie
Jo Swanger." (Id. at mr 23,27).
Plaintiffs claim individual School Defendants increased the risk of harm to Bobbie Jo
by failing to timely report Mattison's conduct to the proper authorities, failing to adequately
train or supervise Defendants Osenga and Del Gotto, failing to ensure proper conduct from
Mattison, and being deliberately indifferent to his conduct and the risk of harm to others
from his conduct. (Id. at 11 30).
The individual School Defendants move to dismiss the claim for compensatory
damages under the Rehabilitation Act (Count I), the § 1983 claim (Count III) on grounds of
absolute immunity and the argument that they are not state actors, and the breach of
fiduciary duty claim (Count IV) on immunity grounds under the Pennsylvania Subdivision
Tort Claims Act. Finally, Defendants move to dismiss the claim for punitive damages
against all School Defendants under Counts III and IV.
III. Standard of Review on Motions to Dismiss

A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege
"enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must

aver "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, 129 S.Ct.

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1937,1949,173 L. Ed. 2d 868 (2009). 1I[W]hen presented with a motion to dismiss for failure
to state a claim, ... [the] Court must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210­
11 (3d Cir. 2009) (citing Iqbal, 129 S.Ct. at 1949). The "Court must then determine whether
the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible
claim for relief.'" Id. at 211.
District courts confronted by a motion to dismiss should engage in a two-step
analysis. First, the district court should accept all well-pleaded facts as true, but may reject
mere legal conclusions. Second, the district court should then determine whether the facts,
as asserted, establish a "plausible claim for relief." Iqbal, 129 S.Ct. at 1950. Thus, a
complaint must "show" an entitlement to relief with facts, as amere allegation that a plaintiff
is entitled to relief is insufficient to withstand a motion to dismiss. See Philips v. Co. of
Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). As the Supreme Court instructed in Iqbal,
"[w]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the
pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will
be "a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Id.; see also Fowler, 578 F.3d at 210-11.
IV. Analysis
Count III (§ 1983 substantive due process)

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Individual School Defendants claim they are entitled to absolute immunity under the

Coverdell Act, 20 U.S.C. §§ 6731 et seq., which states that "no teacher1 in a school shall be
liable for harm caused by an act or omission of the teacher on behalf of the school." Id. at §
6736. Immunity is available when lithe harm was not caused by willful or criminal
misconduct, gross negligence, reckless misconduct, or aconscious, flagrant indifference to
the rights or safety of the individual harmed by the teacher." Id. at § 6736(a)(4). Immunity
is unavailable if Defendants failed to comply with federal, state, or local laws. Plaintiffs
claim that School Defendants violated Pennsylvania's Child Protective Services Law
("CPSL"), 23 PA. CONS. STAT. § 6301 2 by failing to report to state authorities Mattison's
sexual misconduct.
Defendants cite to K.R. v. Sch. Dist. of Philadelphia, No. 06-388, 2008 WL 2609810,
at *1! 10 (E.D. Pa. June 26,2008), in which the court granted absolute immunity to the
individual school defendants, even though the plaintiffs alleged that school officials
attempted to conceal verbal and physical assaults on an autistic student from her
classmates. However, K.R. was decided on a summary judgment motion. The Amended
Complaint survives a motion to dismiss because the teachers are alleged to have
affirmatively placed Bobbie Jo next to Mattison in reckless disregard for her safety, and all
individual School Defendants are alleged to have failed to report Mattison's misconduct.
Therefore, the Court will deny without prejudice absolute immunity for Defendants.
The protections of the Act also apply to "principals and other school professionals." 20 U.S.c. § 6732.
The CPSL specifically includes school administrators and teachers as those charged with the duty to
report abuse. Id. at § 6311(b).
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Individual School Defendants also contend that they are not state actors for the

purposes of a § 1983 action. The Third Circuit has held that school employees are state
actors if (1) a special relationship exists between the employees and the student, (2) school
officials created a dangerous environment, or (3) the school district enacted a policy,
custom, or practice permitting injuries to a student's constitutional rights. 3 D.R. by L.R. v.
Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1368 (3d Cir. 1992) (finding no
special relationship between school and student who had a hearing impairment and related
communication problems).
Special Relationship
The leading Third Circuit case is D.R. by L.R., which interpreted Supreme Court
precedent in deciding that there is usually no special relationship between school
employees and students. liThe Due Process Clause does not impose an affirmative duty
upon the state to protect its citizens. Rather, it serves as a limitation on the state's power to
act." DeShaney v. Winnebago Cnty. Dep't of Social Srvcs., 489 U.S. 189, 195, 109 S.Ct.
998, 1002, 103 L.Ed.2d 249 (1989). When the state enters into a special relationship with a
particular citizen, it may be held liable for failing to protect him or her from the private
actions of third parties." Id. at 1369. However,
[I]t is the State's affirmative act of restraining the individual's freedom to act
on his own behalf- through incarceration, institutionalization, or other similar
restraint of personal liberty-which is the 'deprivation of liberty' triggering the
3 Plaintiffs did not sue WRSD in Count III. Therefore, Plaintiffs are not contending that the individual
School Defendants acted pursuant to a custom, policy, or practice of WRSD.

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protections of the Due Process Clause, not its failure to act to protect his
liberty interests against harms inflicted by other means.
Deshaney, 489 U.S. at 200.
According to D.R. by L.R., there is no special relationship between Defendants and
Bobbie Jo because (1) she was not in their physical custody (unlike prisoners, the mentally
ill who have been involuntarily committed, or foster Children), (2) parents "retain the
discretion to remove the child from classes as they see fit," and (3) she had access to help if
she needed it. 972 F.2d at 1371-72. The court in D.R. said there was especially no state
custody in the case of a special needs student because the child's parents have even
greater involvement in the student's education given that they must approve the precise
educational program developed for their child. Id. at 1371. In a later case, the Third Circuit
affirmed D.R.'s holdings:
[In D.R. by L.R.,] we held that where parents remain the primary caretakers of
students and where students are not deprived of access to sources of help,
there is no special relationship between the school and students, despite the
state's compulsory school attendance laws. 972 F.2d at 1371-72. Like the
parents in D.R. by L.R. who maintained custody over the high school
students, the Aliens, ... maintained custody over Jaquan. In fact, the Aliens
had more control over Jaquan's education than other parents because they
had to approve his special needs educational plan. See D.R. by L.R., 972
F.2d at 1371 .... There is no record evidence that [defendant] physically
restrained Jaquan or otherwise impaired his liberty in such a fashion that
prevented him from taking care of himself. In fact, as a resource-level
student, Jaquan could seek the haven of his emotional support classroom or
report school-related problems to his parents.
Allen v. Susquehanna Twp. Sch. Dist., 233 F. App'x 149, 152 (3d Cir. 2007) (affirming the
district court's grant of summary judgment in favor of the school defendants when astudent
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with a serious emotional disturbance left school without permission and was tragically struck
and killed by an automobile).
Plaintiffs contend that because the teacher Defendants placed Bobbie Jo near

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Mattison, her liberty was restrained such that she could not move. However, the Amended

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Complaint does not allege that Bobbie Jo was prohibited from moving. There are no

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allegations that any School Defendants physically restrained Bobbie Jo. Plaintiffs further
argue that because of Bobbie Jo's learning disability, she has "cognitive difficulties that
greatly impaired her ability to avail herself of any resources around her to protect herself."
(Doc. 43, at a-9). Though the Amended Complaint does state that Bobbie Jo has a learning
disability and is a special needs student, it nowhere alleges that her cognitive difficulties so
inhibit her that she is incapable of asking for help.4
Therefore, the Court will reject the special relationship theory as a basis for liability
under Count III because the Amended Complaint does not allege the requisite facts that
would convert the non-custodial relationship between the school and Bobbie Jo to a special
relationship.
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State-Created Danger

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To establish that Defendants created a danger to Bobbie Jo, Plaintiffs must show (1)
the harm ultimately caused was foreseeable and fairly direct; (2) there was conduct by a

4 The D.R. by L.R. court also cited to Fialkowski v. Greenwich Home tor Children, Inc., 921 F.2d 459 (3d Cir.
1990) in which the Third Circuit found a severely retarded adult's liberty was not restrained by the state where his
parents were free to remove him from the state institution if they wished, and the patient himself enjoyed
considerable freedom of movement.

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state actor in willful disregard for the safety of the plaintiff; (3) some relationship between
the state and the plaintiff; and (4) the state actors used their authority to create an
opportunity that otherwise would not have existed for the third party's actions to occur.

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 908 (3d Cir.1997). "It is irnportant to
stress, ... that 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."

Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d Cir. 2006) (internal quotation marks

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omitted). That is, Linder the fourth element, the state actors must have engaged in

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affirmative conduct. See Adam C. ex reI. Dennis C. v. Scranton Sch. Dist., No. 3:CV-07­

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0532,2008 WL 4411849, at *8 (M.D. Pa. 2008) (dismissing case because the plaintiffs had
not adequately alleged the fourth element in a case involving the parents' affirmative
placement of their son at a special needs school where he was severely beaten by another
emotionally disturbed student).
Thus, if Defendants Osenga and Del Gotto were aware of Mattison's history, then it
would reasonably be foreseeable that he would act out again. Therefore, the Court will
deny without prejudice the motion to dismiss with respect to the Defendants Osenga and
Del Gotto. The Court notes that only Defendants Osenga and Del Gotto are alleged to have
acted affirmatively. In contrast, according to the Amended Complaint, at most, Defendants
Cross and Barenzetli engaged in nonfeasance or were negligent.
We readily acknowledge the apparent indefensible passivity of at least some
school defendants under the circumstances. Accepting the allegations as true,
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viz., that one school defendant was advised of the misconduct and apparently

did not investigate, they show nonfeasance but they do not rise to the level of

a constitutional violation. As in DeShaney, U[t]he most that can be said of the

state functionaries in this case is that they stood by and did nothing when

suspicious circumstances dictated a more active role for them." DeShaney,

489 U.S. at 203, 109 S.Cl. at 1007.

D.R. by L.R., 972 F.2d at 1376. However, the Court is reluctant to dismiss Defendants

Cross and Barenzelti from this Count at such an early stage of the case before Plaintiffs
have had an opportunity to engage in discovery. Plaintiffs have just barely met their
pleading burden. Therefore, the Court will deny without prejudice the motion to dismiss with
respect to Defendants Crosss and Barenzelti.
Count IV (breach of fiduciary duty)

The individual School Defendants all claim they are immune on this Count based on

the Political Subdivision Tort Claims Act (UPSTCA"), 42 PA. CONS. STAT. § 8541, which
states: "Except as otherwise provided in this subchapter, no local agency shall be liable for

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any damages on account of any injury to a person or property caused by any act of the local
agency or an employee thereof or any other person." This immunity is also available to
municipal employees under § 8545. See also Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir.
2006). However, immunity for an official does not exist when the "act constituted acrime,
actual fraud, actual malice or wilful misconducl." 42 PA. CONS. STAT. § 8550.

5 In fact, Defendant Cross has not been charged with knowledge of Mattison's history or with any
personal involvement in this case, other than "exercising supervisory responsibilities over the teachers" and
possessing "supervisory authority to institute corrective measures on the School District's behalf." (Am. Compl. at
'11114, 16). However, for the same reasons stated above, at this time the Court will not dismiss Defendant Cross as
a party to the case.

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All individual school Defendants argue they are entitled to immunity because they

acted (1) within the scope of their employment; and (2) their actions did not constitute a
crime, actual fraud, actual malice, or willful misconduct. The Third Circuit Court of Appeals
has held that "willful misconduct" in this context has the same meaning as the term
"intentional tort." Bright, 443 F.3d at 287. "[E1ven where a public employee acts with a
degree of culpability equivalent to "recklessness," Pennsylvania law nevertheless affords
him immunity." Id. at 287. Proof of conduct which abrogates immunity under the PTSCA
requires a "demanding level of fault." Sanford v. Stiles, 456 F.3d 298, 316 (3d Cir. 2006)
(affirming district court's grant of summary judgment in favor of school counselor who had
made conscious judgment that student was not suicidal, even though the student later
committed suicide); see also Vicky M. v. Ne. Educ.lnter. Unit, 689 F. Supp. 2d 721,741
(M.D. Pa. 2009) (denying on summary judgment motions immunity to teacher who allegedly
used restraints on students and left students restrained on the floor, but granting immunity
to supervisors on motions for summary judgment). In Vicky M., with respect to the
supervisory School Defendants, Judge Caputo said:
When considering the actions of supervisors, evidence which demonstrates
deliberate indifference fails to establish the type of willful misconduct
necessary to pierce PSTCA immunity. Bright, 443 F.3d 276, 287 (3d Cir.
2006). While Plaintiffs correctly allege willful misconduct, they have failed to
provide any evidence which demonstrates this high level of fault. ... Even
examining the record in the light most favorable to the Plaintiffs, the conduct
of [defendants1 was at best negligent. Likewise, while the conduct of the
NEIU defendants potentially rises to the level of deliberate indifference, even
this type of conduct is immunized under the PSTCA. Bright, 443 F.3d at 287
(allegation of deliberate indifference not enough to avoid PSTCA immunity).
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Vicky M., 689 F. Supp. 2d at 741. At this time, consistent with the Court's discussion on the
state-created danger theory, the Court will deny without prejudice immunity under the
PSTCA to the individual School Defendants.
Compensatory Damages under Count I (Rehabilitation Act)
Under the Rehabilitation Act of 1973,29 U.S.C. § 701 et seq. ("RAil) , Plaintiffs must
show that Bobbie Jo is (1) a handicapped individual, (2) is otherwise qualified for
participation in the special needs programs, (3) the School District receives federal financial
assistance, and (4) she was denied the benefits of or subject to discrimination under the
program solely by reason by her disability. Nathanson v. Med. Coli. of Pennsylvania, 926
F.2d 1368, 1380 (3d Cir. 1991).
Defendant WRSD moves to dismiss compensatory damages under the RA because
Plaintiffs did not allege that WRSD's actions were intentional. Kaitlin C. by Shannon M. v.

Cheltenham Twp. Sch. Dist., No. 07-2930, 2010 WL 786530, at *4 (E.D. Pa. Mar. 5, 2010)
(granting motion to dismiss). Previously, the Third Circuit stated that a plaintiff does not
need to prove that the defendant's discrimination was intentional. Ridgewood Bd. of Educ.

v. N.E., 172 F.3d 238, 253 (3d Cir. 1999). But the Kaitlin C. court distinguished Ridgewood
by saying, "Section 504 covers a wide range of conduct and offers many remedies. There is
no indication that the court's statement in Ridgewood was intended to apply to § 504 claims
seeking compensatory damages." Kaitlin C., 2010 WL 786530, at *4. It then went on to

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explain in detail why compensatory damages were unavailable absent an allegation of
intentional discrimination. 6
In response, Plaintiff cites to only Vicky M., a case relying on Ridgewood that was
decided by Judge Caputo before Kaitlin C. was decided. In Vicky M., Judge Caputo
concluded that intentional discrimination need not be alleged in a complaint. However,
Kaitlin C. has been cited with approval by courts in every federal district in Pennsylvania.

Furthermore, Judge Caputo expressly relied on Kaitlin C. in a decision subsequent to Vicky
M. Adam C. v. Scranton Sch. Dist., No. 3:07-CV-532, 2011 WL 4072756, at *2 (M.D. Pa.
Sep. 3, 2011) ("In acomprehensive analysis of the above quote from Ridgewood, the Kaitlin
C. court determined that "[t]here is no indication that the court's statement in Ridgewood
was intended to apply to § 504 claims seeking compensatory damages. The Rehabilitation
Act's remedies provision and Supreme Court precedent support this reading of Ridgewood."
Id. at *4.... [I]ntentional discrimination is required to obtain damages under Section 504.").

Construing Amended Complaint in Plaintiffs' favor, Plaintiffs just barely meet the threshold
of pleading requirements to survive a motion to dismiss. Plaintiffs allege that Defendant
WRSD "failed to provide [Bobbie Jo] with the same protection that all other students were
provided by repeatedly seating her near ... Defendant Mattison." (Doc. 34, ~ 35).

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6 There appears to be no Third Circuit precedent on this issue. The Kaitlin C. court noted that the
remedies provision of the RA tracked the remedies available under Title VI of the Civil Rights Act of 1964. Id. Then,

analyzing three Supreme Court cases which interpreted Title VI, the Kaitlin C. court concluded that based on
Supreme Court precedent, compensatory damages were available only when intentional discrimination was
shown. Id. at "'*4-5. It then inserted a footnote which listed several cases from four other circuits that had
concluded that intentional discrimination must be shown for a plaintiff to obtain compensatory damages under
Section 504 of the RA. Id. at *5, n.6.

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Furthermore, Defendants' actions constituted a "conscious disregard" for Bobbie Jo's
disability. (Id. at 1f 38). Thus, by the thinnest of margins, Plaintiffs have alleged intentional
conduct on the part of Defendant WRSD. Therefore, the Court will deny without prejudice
Defendants' motion to dismiss the claim for compensatory damages under the RA.
Punitive Damages under Counts III and IV
Plaintiffs are suing individual School Defendants for monetary damages in both their
official and personal capacities. To win monetary damages, though, Plaintiffs can sue
defendants in their individual capacities only. Will v. Michigan Dep't of State Police, 491
U.S. 58,71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); Indep. Enter. Inc. v. Pittsburgh
Water and Sewer Auth., 103 F.3d 1165, 1173 (3d Cir. 1997). Therefore, the Court will

dismiss Counts III and IV against individual School Defendants in their official capacities.
Punitive damages are available against state or local officials in their personal
capacities when their conduct "is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others." Smith v.
Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640,75 L. Ed. 2d 632 (1983); Savarese v. Agriss,

883 F.2d 1194, 1204 (3d Cir. 1989).
Based on Plaintiffs' allegations of Defendants' deliberate indifference and intentional
conduct, the Court will deny without prejudice the motion to dismiss punitive damages with
respect to all School Defendants in their individual capacities because at this time the Court
is without sufficient facts that would enable it to make a final ruling on the matter.

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V. Conclusion
For the abovementioned reasons, the Court will grant in part and deny in part
Defendants' Motion to Dismiss. (Doc. 41}. The Court will deny without prejudice absolute
immunity to individual School Defendants under the Coverdell Act on Count III. The Court
will not dismiss Count III (§ 1983 substantive due process claim) based on a state-created
danger theory, but it will reject the special relationship theory as a basis for liability on the
count. The Court will deny without prejudice immunity to individual School Defendants
under the PSTCA on Count IV (breach of fiduciary duty claim). The Court will deny without
prejudice the motion to dismiss the claim for compensatory damages under Section 504 of
the RA (Count I). Finally, the Court will dismiss the claim for punitive damages against all
individual School Defendants in their official capacities but will deny without prejudice the
motion to dismiss punitive damages with respect to their personal capacities.

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Robert D.
ani
United States District Judge

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